Tag: #SupremeCourt

INTRODUCTION

Child sexual abuse laws have been enacted in India as part of the country’s child protection programs. On May 22, 2012, the Indian Parliament enacted the POCSO bill, 2011, into law. The government’s rules, which were formulated in compliance with the law, were also notified in November 2012, and the law was declared ready for execution. Many people have called for stricter rules. India has one of the world’s greatest populations of children, with a population of 472 million children according to 2011 census figures. Article 21 of the Indian constitution guarantees Indian citizens that the state would protect their children.

MERITS OF POCSO ACT

• Particular care and protection are given to child victims, which aids in treating the matter more empathetically and carefully # special courts and prosecutors in order to offer fast justice
• Efforts to make police more sensitive in their treatment of cases, such as recording solely female officers’ statements in cases of girl child abuse.
• The burden of proof is on the accused, therefore there is legal safety for the victim.

DEMERITS OF POCSO ACT

The statute considers everyone under the age of 18 to be a kid, only their biological age is taken into account, not their mental age. This provides a technological stumbling block for those with mental disabilities seeking justice. It’s also been abused in cases of love elopement, even when the girl and boy are only a few years apart in age (17.5, 18 years).
Lower awareness of the act, fear of social shame, and a lack of training for police officers, lawyers, and judges all contribute to the legislation’s ineffective execution. Through different ways, the government has conducted an awareness program concerning child abuse and the law, including an e-box initiative for filing online accusations of child sexual abuse. However, in exceptional circumstances, the Act should be reviewed with regard to a child’s age.

Section 9 of the POCSO Act

Section 9 of the POCSO Act, 2012 talks about aggravated sexual assault on a child below 12 years.

Section 10 of the POCSO Act

Section 10 of the POCSO Act states whoever commissions an aggravated sexual assault shall be punished with imprisonment of either description for a term which shall not be less than 5 years but which may extend to 7 years, and shall also be liable to fine.

The state of Kerala and Another v. Hafsal Rahman NK and Others

In The State of Kerala vs. Hafsal Rahman N.K. & Ors., the accused, who was 36 years old and a resident of Kerala’s Malappuram district, was charged with violating Sections 9(f) and 10 of the POCSO Act. Section 9(f) deals with the penalty of those who are members of the management or staff of a religious or educational organization. Aggravated sexual assault is punishable under Section 10 by a minimum of five years in jail, with the possibility of a seven-year sentence and a fine.

The Kerala High Court observes in its order, issued by Justice Alexander Thomas, that the whole argument between the petitioner and the respondents had been settled “amicably” with the minor girl’s mother submitting an affidavit stating that she had no objection to the quashing of the pending criminal proceedings against the accused. The prosecution argued that the settlement reached between the accused and the complainant looked to be genuine before the Kerala High Court, based on the investigation performed by the investigating officer.

The accused, who was the victim’s instructor, allegedly summoned the student to his room, where he kissed her on the forehead and touched her cheeks. The High Court reasoned that the Supreme Court has held that, in appropriate cases involving even non-compoundable offenses, the High Court can quash prosecution by exercising powers under Section 482 of the Criminal Procedure Code if the parties have truly settled the entire dispute or if the prosecution would serve no purpose other than wasting the court’s valuable time.

The High Court cited Gian Singh vs. the State of Punjab (2012) and Narinder Singh & Ors. vs. the State of Punjab (2014) (especially paragraph 29) in support of quashing the FIR against the accused based on the parties’ settlement of their differences.

The Supreme Court bench led by Justices Ajay Rastogi and Abhay S. Oka stayed a Kerala High Court order issued on August 26, 2019, that quashed a First Information Report (FIR) filed against an accused under the Protection of Children from Sexual Offenses (POCSO) Act, 2012 only if the parties reached an agreement.

While hearing the Kerala Government’s appeal against the ruling, the bench noted the government’s argument that quashing the FIR is not admissible in light of the Supreme Court’s decision in the State of Madhya Pradesh vs. Laxmi Narayan & Ors (2019). The bench issued a notice, which must be returned within eight weeks while delaying the High Court’s order and allowing the state police to investigate the case further.

CONCLUSION

Hence, according to the judgment of the Hon’ble Supreme Court of India, we can conclude that compromise between the petitioner and the accused can’t be the reason for quashing the FIR under POCSO Act.

References

1. SC stays order of Kerala HC, https://www.theleaflet.in/sc-stays-kerala-hc-order-quashing-fir-in-pocso-case-citing-compromise-between-the-accused-and-the-complainant/

This article is written by Dalima Pushkarna student at Dr Ram Manohar Lohiya National Law University, Lucknow.

INTRODUCTION

Whatever is given under power is a writ. Orders, warrants, headings, and so forth given under power are instances of writs. Any individual whose central freedoms are disregarded can move the High Court (under article 226 of the Indian constitution) or the Supreme Court (under article 32) and the court can give bearing or orders or writs. Accordingly, the ability to give writs is principally an arrangement made to make accessible the Right to Constitutional Remedies to each resident. Notwithstanding the abovementioned, the Constitution likewise accommodates the Parliament to give on the Supreme Court ability to give writs, for purposes other than those referenced previously. Additionally, High Courts in India are likewise engaged to give writs for the requirement of any of the freedoms presented by Part III and for some other reason.
In India, both the Supreme Court and the High Court have been engaged with Writ Jurisdiction. Further, Parliament by law can stretch out the ability to give writs to some other courts (counting neighborhood courts) for nearby constraints of the locale of such courts.

WRIT OF QUO WARRANTO

The word Quo-Warranto in a real sense signifies “by what warrants?” or “what is your power”.The Writ of Quo-warranto in the writ is given guiding subordinate specialists to show under the thing authority they are holding the workplace. If an individual has usurped a public office, the Court might guide him not to do any exercises in the workplace or may report the workplace to be empty. Consequently, High Court might give a writ of quo-warranto assuming an individual holds an office past his retirement age.
The Writ of Quo-Warranto can’t be given to an individual working in a private field. This writ is given to an individual in an office, the lawfulness of which is being addressed.

CONDITIONS FOR ISSUE OF THE WRIT OF QUO-WARRANTO

1. The workplace should be public and it should be made by a sculpture or by the actual constitution.
2. The workplace should be a considerable one and not only the capacity or work of a worker at the will and during the joy of another.
3. There more likely than not be a negation of the constitution or a rule or legal instrument, in naming such individual to that office.

CASE LAWS FOR WRIT OF QUO WARRANTO

In the University of Mysore v. Govinda Rao, A.I.R. 1965 S.C. 491(1) case, the Court believed that the writ of quo warranto calls upon the holder of a public office to show to the court under the thing authority he is holding the workplace being referred to. On the off chance that he isn’t qualified for the workplace, the court might limit him from acting in the workplace and may likewise announce the workplace to be empty.

In Amarendra v. Nartendra, A.I.R. 1953 Cal.114. (2) case, the Court held that the writ lies in regard of a public office of a meaningful person and not a private office, for example, participation of a school overseeing panel.

In Mohambaram v. Jayavelu, A.I.R. 1970 Mad.63 (3); Durga Chand v. Organization, A.I.R 1971 Del.73. cases, the Court thought that an arrangement to the workplace of a public examiner can be subdued through quo warranto if in repudiation of significant legal guidelines as it is a considerable public office including obligations of public nature of essential interest to the public.

In K. Bheema Raju v. Govt, of A.P., A.I.R. 1981 (4) A.P. case, the Andhra Pradesh High Court suppressed the arrangement of an administration pleader as the technique endorsed in the significant standards, for this reason, had not been kept.

BUSINESS LAWS

Every one of the laws which relate to how what and why of how organizations are legitimately permitted to and expected to work are included by what is business law. Business law significance incorporates contract laws, assembling and deals laws, and recruiting practices and morals. In straightforward words, it alludes to and relates to the legitimate laws of business and trade in people in general just as the private area. It is otherwise called business law and corporate law, because of its tendency of directing these universes of business.

IMPORTANCE OF BUSINESS LAW

Business law is a significant part of law overall because, without the equivalent, the corporate area, producing area, and the retail area would be in oppression. The point of assembling business and law is to keep up with protected and utilitarian working spaces for all people associated with the business, regardless of whether they’re running it or working for individuals running it.

KINDS OF BUSINESS LAW

There are a few kinds of business laws that are perceived and pursued by nations all over the planet. A portion of these are:

• Contract Law – An agreement is any record that makes a kind of legitimate commitment between the gatherings that sign it. Contracts allude to those worker contracts, the offer of products contracts, rental contracts, and so on
• Employment Law – Employment law is the place where business and law should meet. These laws uphold the standards and guidelines that oversee representative boss connections. These cover when, how and for how much, and how long representatives should function.
• Labour Law – Labour law likewise shows the suitable connection between worker and manager, and pay grades and such. Notwithstanding, an extra component to work laws is the relationship of the association with the business and representative.
• Intellectual property Law – Intellectual property alludes to the immaterial results of the working of the human brain or mind, which are under the sole responsibility for a single substance, as an individual or organization. The approval of this possession is given by intellectual property law, which consolidates brand names, licenses, proprietary advantages, and copyrights.
• Securities Law – Securities allude to resources like offers in the financial exchange and different wellsprings of capital development and gathering. Securities law precludes businesspersons from leading false exercises occurring in the protections market. This is the business law segment that punishes protections extortion, for example, insider exchanging. It is, accordingly, additionally called Capital Markets Law.
• Tax Law – As far as business law, tax assessment alludes to charges charged upon organizations in the business area. It is the commitment of all organizations (aside from a couple of expense excluded humble organizations) to pay their duties on schedule, inability to finish which will be an infringement of corporate duty laws.

BUSINESS LAWS IN INDIA

In the Indian setting, there are a few business law areas vital to the country’s business area. A portion of these are:

• Complete acceptance of the contract by both parties.
• Lawful consideration from both parties.
• Competent to contract:
• Neither party should be a minor.
• No party should be of unwell mind.
• Free consent: neither party should have been pressurized into signing.
• Agency: when one party engrosses another party to perform in place of it.
• Final enforcement of contracts

Sales of Goods Act 1930 –
The exchange of responsibility for substantial, enduring ware between a purchaser and a dealer for a concluded measure of cash warrants an offer of products contract, whose particulars are described by the Sale of Goods Act 1930.

Indian Partnership Act 1932 –
An association in business alludes to when at least two business elements meet up to make another endeavor together. The speculation and benefits are parted equally between the elaborate gatherings. The Indian Partnership Act gives the laws under which associations in India can work.

Limited Liability Partnership Act 2008 –
This Act is separated from the IAP of 1932. A Limited Liability Partnership is a different legitimate element, which proceeds with its business with no guarantees, regardless of whether an organization breaks down, just experiencing the responsibility as referenced in the agreement.

Companies Act 2013 –
This is a definitive business law, which administers and gives the principles relating to every part of creation just as the disintegration of organizations set up in India.

This article is written by Sara Agrawal student at Sinhgad Law College, Pune.

INTRODUCTION

In the current globalization period of the electronic and IT age where providers, clients, purchasers, and laborers are all at better places and are isolated by various time regions questions which emerge should be settled through electronic intervention so that time and cash both can be saved. This article attempts to harp to a greater degree toward the thrilling fate of e-assertion gave frameworks of checks and equilibrium are kept up with like conventional discretion ¹.
The utilization of innovation in debate goals is presently not an uncommon event. The ideas of worldwide exchange and unfamiliar venture are cherished in the crucial idea of global business assertion and online debate goal. 2021, the time of hope, brought a limit with regards to more noteworthy work and global venture. Because of the uncommon dependence on virtual or advanced advances in 2020, substances, for example, organizations, firms, and legal counselors began encountering digital assaults.
While, the innovative progressions have now overcome much enough for everybody to know that, in a limited way, information and security hazards are constantly implied, the highly sensitive situation in 2020 constrained attorneys, customers, and foundations towards remote working frameworks that are intensely reliant upon online innovation and administrations².
In India, an internet-based mediation statement in customary and e-contracts is substantial under Section 7 of the Arbitration and Conciliation Act of 1996 (the “Act”). This has released Pandora’s container of specialized and lawful intricacies. Law offices have turned into a most loved objective for such exercises. Law offices work in a framework that is dynamic, non-static and various briefs are taken care of all the while by lawyers over messages and online records.

GOING INTO AN ONLINE ARBITRATION AGREEMENT

The different ways by which gatherings go into an internet-based assertion arrangement are by:

• Commonly consenting to determine any questions through the internet-based discretion instrument, and
• Consenting to an internet-based assertion proviso via purchasing any item or administration where the terms of purchasing give so. The agreements of each exchange are available by a hyperlink or are given toward the finish of a page. The permeability of the said agreements assumes a vital part in examining the extent of a noteworthy/enforceable web-based discretion understanding.
  

There are two sorts of sites with regards to deciding if huge consideration of the purchaser was brought towards the state of online intervention or not:

1. Browse-wrap sites
   These sites are of such nature that they expect to agree to the hyperlinked agreements by the purchaser essentially entering the site. Since the hyperlink is regularly dark and, in some cases, thought to be agreed to, these agreements are without any web-based intervention provisos.
2. Click-wrap sites
   Click-wrap sites require the purchaser to effectively show that the purchaser is consenting to their agreements for the buy ¹.

LEGITIMATE VALIDITY OF ONLINE ARBITRATION IN INDIA

While Section 31 (1) of the Act gives that an intervention arrangement will be recorded as a hard copy, it will be perused with Section 4 of the Information Technology Act, 2000 (“IT Act”) which expresses that where any law gives that any matter will be recorded as a hard copy/type-composed/printed, then, at that point, such prerequisite would be considered fulfilled assuming such matter is: (i) made accessible in an electronic structure; and (ii) available to be usable for ensuing reference¹.
In web-based business connections, the issue of checking the character of the restricting gatherings is very normal. One should make certain of the individual’s character with whom they are managing. Section(s) 4 and 5 of the IT Act read with Section 65-B of the Evidence Act explains the legitimate acknowledgment of electronic records and marks. Such online endorsements are crucial in guaranteeing the character, validness, and non-disavowal/legitimacy of information correspondence, along these lines catalyzing trust.
Under the said segments, the Supreme Court, in State of Maharashtra v. Dr. Praful B. Desai, 2003 4 SCC 601, has likewise recognized the execution of video conferencing frameworks to record observer explanations. For consistency, the rules given by the International Chamber of Commerce might be followed.
Online assertion and ADR overall happen under the shadow of the appropriate laws to the topic. The result from the appropriate law where no arrangement is reached (in an internet-based mediation continuing) gives the gatherings included a sensibly solid thought of their negotiating posture in a debate during the period of planning in the intervention procedures. Hence, a steady and all-inclusive methodology in managing the internet-based case the executives’ frameworks for online mediation stay to be in shortfall.
The current law in India can be perceived from two milestone Supreme Court cases, Trimex International FZE Ltd. v. Vedanta Aluminum Ltd., (2010) 3 SCC 1, and Shakti Bhog Foods Ltd. v. Kola Shipping Ltd., AIR 2009 SC 12, wherein the Hon’ble Court has maintained the legitimacy and enforceability of an assertion understanding recorded as a hard copy closed through a trade of messages and electronic archives that were endorsed by the gatherings.

TRUST IN ONLINE ARBITRATION

The capacity of trust and equity in web-based assertion is intricate and incorporates a few variables which need due thought. Because online intervention procedures are virtual, it is hard for the authority to build up trust in and among the gatherings. In internet-based mediation, parties frequently host not met the contradicting get-together, not to mention the judge. This forces a constraint on the comprehension of the referee concerning the gatherings in question, their relationship, and their foundation. The referee passes up the different social signals and a chance to peruse the gatherings’ body language.

CONCLUSION

With the coming of innovation in the developing internet business time, e-mediation are the future anyway the equivalent must be effective on the off chance that there are laws, computerized security, digitization of courts and online paperless legal executive ought to be set up in India, which are followed in any case there will be ascending in more questions and the premise motivation behind discretion will be foiled and shoppers will be denied evenhanded equity.

References

1. Scope of Online Arbitration and its Future in India. usllsadrblog.com. [Online] https://usllsadrblog.com/scope-of-online-arbitration/.
2. Future of arbitration : everything you need to know about e-arbitration . blog.ipleaders.in. [Online] https://blog.ipleaders.in/future-arbitration-everything-need-know-about-e-arbitration/.

This article is written by Sara Agrawal student at Sinhgad Law College, Pune.

Case number

Criminal Appeal No. 195 of 1960

Equivalent citation

AIR 1962 SC 605

Bench

Hon’ble Justice K. Subba Rao.

Date of Judgement

November 24, 1961.

Relevant Act(s)

The “Evidence Act, 1872”; the “Indian Penal Code, 1860”.

Facts of the case

K.M. Nanavati is the petitioner. He was an Indian naval Officer then. He was married in the year 1949, to Sylvia in England. They also had three children and had shifted to Bombay, after residing in a number of places. Prem Bhagwan Ahuja was a business who also resided in Bombay along with his sister. He had a business in automobiles. Nanavatis were introduced to the Ahujas through some common friends, the Agniks. Prem Ahuja was not married. The petitioner used to stay out of the station most of the time due to his profession. In his absence, Ahuja and Sylvia became friends, and soon she fell in love with him. This resulted in an illicit relationship between both of them. After a certain period of time, Sylvia began doubting Prem and felt that he would not get married to her. Hence, in 1959, on April 27th, Sylvia confessed to Nanavati about her love for Prem Ahuja. Nanavati was infuriated. He went to his naval base to take a semi-automatic pistol along with six cartridges, on a false pretext. He then arrived at Ahuja’s place, went to his bedroom, and asked him if he is ready to marry Sylvia and take responsibility for the children. Prem denied, as a result of which Nanavati shot him thrice and he died on spot. After this whole course of events, he surrendered himself to the police. As a result, he got arrested. He was committed to the Sessions under the charges of “Section 302” as well as “Section 304” of the “Indian Penal Code”. He was declared not guilty then by the jury by 8:1. The sessions judge disagreed with the jury’s decision, and under “Section 307” of the CrPC submitted the case in the Bombay High Court.

Issues

1. Whether the Sessions Judge did not have jurisdiction to exercise “Section 307” of the CrPC?
2. Whether the act committed can be considered as an act done in a “heated moment”?
3. Was there any kind of misdirection?

Arguments

Arguments made by the petitioner:
The counsel first mentioned that Nanavati wanted to kill himself. Sylvia calmed him down. Also, it was claimed that Nanavati had gone to Ahuja’s place just to ask him if he would get married to Sylvia or not. While taking the pistol and cartridges from the base, Nanavati told the ship authorities that since he would travel at night, he needed the pistol for his own safety; and he carried it in an envelope. In reality, he was going to shoot himself and not Ahuja.
When Nanavati arrived at Ahuja’s flat, he asked him if he would marry Sylvia, to which Ahuja denied blatantly. A heated argument took place, and Nanavati had just threatened to thrash Ahuja. He then kept the pistol on a table. Ahuja tried to grab the pistol but failed. In the meantime, the argument escalated between two men. Accidentally shots got fired in the scuffle and killed Prem Ahuja. Hence, Nanavati did not kill him intentionally, and it was not premeditated at all. Even if any crime was committed by Nanavati, it would not be murder and could amount to just culpable homicide.

Arguments made by the respondent:
The counsel for the respondent first mentioned that Ahuja had just come out of the washroom and was still in a towel when Nanavati entered. Therefore, there was no brawl between the two, since the towel did not fall off. Sylvia mentioned that they went to the movies, and Nanavati had dropped them. This shows that he was in a calm mind and was not enraged then. Thus, there was no chance of any “sudden provocation”. It was not an accident, because Ahuja’s sister was in the other room and Nanavati did not bother to inform her about the mishap. Instead, he just left.

Judgement

Judgement of the Bombay High Court:
The case came to the Bombay High Court since the Sessions Judge did not agree to the jury’s decision in the Sessions court where Nanavati was declared not guilty. The case was heard by Hon’ble Justice Jaishanker Manilal Shelat, and Hon’ble Justice Naik. They decided that Nanavati should be convicted under “Section 302” of the “Indian Penal Code”, and gave the sentence of life imprisonment. The court mentioned that it was unreasonable on the jury’s part in the Sessions Court to declare Nanavati not guilty. No case was made to reduce the intensity of the event, i.e., from murder to culpable homicide.

Judgement of the Supreme Court:
The Supreme Court concluded that the concept of “suddenness” was not present in this case. This is because when Sylvia confessed to her illicit relationship with Nanavati, it was serious and grave, but Prem Ahuja was not present on the scene. According to the Hon’ble Supreme Court, since around three hours gap was present between the confession of the wife and the incident, Nanavati had enough time to cool down. Hence, the Apex Court decided in favour of the Bombay High Court’s decision of sentencing the petitioner to life imprisonment. The Court concluded that it was not an act of “grave and sudden provocation”. The Court decided that it was the judge’s duty to instruct the jury as to the legal ramifications. As per the court, the jury was misled due to the judge, which led to an unreasonable judgement by the jury. It was also held by the Court that the Sessions Judge did have jurisdiction to exercise “Section 307” of the CrPC.

Conclusion

This is an important case where the topic of “grave and sudden provocation” was discussed. This case also attracted huge media attention then. The whole nation was shocked by such a “crime of passion”. This case showed that no matter what position an individual holds in society, they would be punished by the law if they commit something unlawful. Another important part of this case was the jury trials. The jury trials were soon discontinued by the Government after this case, due to chances of such misled judgements.

This article is written by Aaratrika Bal student at National Law University Odisha.

Case number

Writ Petition (C) No. 1031 of 2019.

Equivalent citation

AIR 2020 SC 1308.

Bench

Hon’ble Chief Justice of India N. V. Ramana, Hon’ble Justice R. Subhash Reddy, Hon’ble Justice B. R. Gavai.

Date of Judgement

January 10, 2020.

Relevant Act(s)

“Constitution of India”, “The Code of Criminal Procedure (Amendment) Act, 2005”, “The Indian Telegraph Act, 1885”

Facts of the case

The issue came in 2019 when the Government of Jammu and Kashmir issued a “Security Advisory” and directed the tourists (including numerous “Amarnath yatris”) to return in order to ensure safety. Adding to this, orders were issued to shut down educational institutions. Finally, on 4th August, internet connection, phone networks, and landline connections were cut off too. On August 5th, the President decided to impose “Constitutional Order 272”. As per this order, the provisions of the Indian Constitution would be applied to Jammu and Kashmir. Simultaneously, Section 144 of the CrPC was imposed in order to maintain peace in the valley. Due to such restrictions that were imposed, movements of various journalists were hampered a lot as well. As an outcome of this, the “Kashmir Times Srinagar Edition” could not get distributed on 5th August. The petitioner is the executive editor of the “Kashmir Times” newspaper. The petitioner has also claimed that she had not been able to publish the newspaper since the next day, i.e., 6th August 2019. Under Article 32 of the Indian Constitution, the petitioner had approached the Hon’ble Supreme Court, for issuance of a writ for setting aside the orders imposed by the respondents. She claimed that the Internet is an important factor in today’s world. She also claimed for lesser restrictions in the movement of journalists.

Issues

• Whether the Government can claim exemption from producing all orders passed under CrPC Sec 144 and others under suspension rules.
• Whether “freedom of speech and expression” and “freedom to practice any profession, or to carry out any trade” over cyberspace can be considered a fragment of the fundamental rights under “Part III of the Constitution”.
• Was it valid on the Government’s part to restrict internet facilities and to impose restrictions under “Section 144 of the CrPC”?
• Was the petitioner’s “freedom of the press” violated due to the restrictions?

Arguments

Arguments made by the petitioner:
The first argument put forward was that the petitioner could not do her job and get the newspaper published due to the imposed restrictions (on press) from 5th August 2019. Since internet facilities were stopped, the print media got hampered badly. Hence, people’s livelihood got affected due to the restrictions (violation of Article 19(1)(g) of the Indian Constitution). The right to speech was violated, due to the cutting down of internet facilities. It was argued that the restrictions made were not at all reasonable or proportional in any sense. The counsel contended that all the restrictions were levied on the premise of the apprehension of some danger to the regulations and law. Also, there is a difference between “public order” and “law and order”. The restrictions imposed and the measures taken were in order to protect “law and order”. Also, these restrictions did not even seem to be temporary, because it had already been a long time since they were functioning. It was argued that the state should have undertaken a less strict alternative in the beginning. Also, the restricting movement was applied over the entire state, and not in specific regions. The petitioners contended that such a restriction all over the state was unnecessary.

Arguments made by the respondent:
The primary argument made by the respondent was that these restrictions were absolutely necessary in order to fight terrorism in the state. They also claimed that general freedom of expression and speech cannot be applied to the Internet, because there are a lot of dangers on this platform. It was argued that it is not possible to shut down specific websites, hence, a total shutdown was the only alternative. They also claimed that the situation was getting exaggerated.

Judgement

The Court held that the “freedom of speech and expression” and “freedom to practise any profession or to carry out any trade” on cyberspace are protected under Articles 19(1)(a) and 19(1)(g) respectively. It was held that any restrictions on the abovementioned rights, would have to be reasonable and in compliance with Articles 19(2) and 19(6) of the Constitution. Hence a “proportionality test” was ordered by the Apex Court. If the restriction to internet access is not found to be proportional then it would cease to exist. It was held that: “the government cannot contend any exception for providing any order before the court which is passed under Section 144 of the CrPC.” No order was issued by the court to provide remedies to those who were already affected, but a lot of principles were laid down for future suspensions. Apart from these, the court dismissed the plea where the petitioner claimed that freedom of the press was violated due to the restrictions, due to lack of evidence.

Conclusion

Internet is an important part of our daily life in today’s world. We are very much dependent on the internet for a lot of things including trade and business. It can be concluded that Internet has become so important that it is being included in Part III of the Indian Constitution. This judgement is very significant because the primary aim of the case was to judge the legality of the restriction of internet facilities. The Apex Court had also introduced a number of principles that would prevent undue misuse of the powers provided to the Government, especially in such cases.

This article is written by Aaratrika Bal student at National Law University Odisha.

Case number

Criminal Appeal No. 573 of 2016.

Equivalent citation

(2021) 6 SCC 213.

Bench

CJI N. V. Ramana, Hon’ble Justice Surya Kant and Hon’ble Justice Aniruddha Bose.

Date of Judgement

May 7, 2021.

Relevant Act(s)

The “Evidence Act, 1872”; the “Indian Penal Code, 1860” and the “Code of Criminal Procedure, 1973”.

Facts of the case

Both parties were very much related to each other. There had been clashes going on for a long time between the family of Jayamma (appellant), who is the wife of Reddinaika and the family of Jayamma (respondent), who was the deceased wife of Sanna Ramanaika. An argument took place between the two families in 1998 on September 10. During this argument, Reddinaika was assaulted by Ramanika’s son, i.e., Thippeswamynaika. After this incident happened, the appellants arrived at the respondent’s place on 21 st September to confront them about the actions of Ramanaika’s son. A sum of Rs. 4000 was also demanded by the appellants in order to cover the medical treatment costs. A heated altercation happened, as a result of which the appellant party poured kerosene on Jayamma (who is now deceased) and set her on fire. The appellants were explicitly blamed for the death of Jayamma (respondent). Jayamma’s family members heard her screams and tried to set off the fire. In the meantime, the appellants ran away from the scene. Jayamma was then admitted to a “public health entre”. Jayamma was given pain killers and basic treatment by Dr A. Thippeswamy. A medico-legal case was then sent to the Thalak police station. Jayamma gave her statement and she had implicated the whole appellant party under “sections 307, 504, 114” read along with “section 34” of the IPC. Finally, on September 23, Jayamma passed away. The post-mortem report said that she died due to shock which came as a result of her injuries. The appellants got arrested, but with the help of anticipatory bail, they had to be released. When the matter was presented in the trial court, a number of witnesses turned hostile. The issue then was whether Jayamma’s death was suicidal in nature or if it was homicidal. It was noted by the court that all of this was based on the dying declaration of Jayamma. The accused were not convicted due to a lack of genuineness and evidence (except for the dying declaration). Therefore, the court acquitted the appellants. During the High Court hearing, it was decided that the judgement of the trial court would be reversed. The HC of Karnataka decided that a dying declaration was enough to convict an accused. The Hon’ble court convicted the accused under “section 302” read with “section 34” of IPC.

Issues

1. Was it right on the High Court’s part to reverse the decision taken by the trial court?
2. Was it successfully established that Jayamma’s death was not suicidal, and instead was homicidal in nature?

Arguments

• Argument made by the appellants:
  The appellant’s side claimed that the decision taken by the trial court was well structured, unlike that of the High Court which was vague and confusing. It was also contended that the High Court failed to examine the conclusions of the trial court. Thus under “section 378” of the CrPC “, it failed to discharge its obligation”. They claimed that a decision should not be taken just on the basis of a dying declaration and that the motive of the appellants could not be established. Hence, the acquittal is incorrect.
• Argument made by the respondent:
  The learned counsel contended that in cases of death from 100% burn injuries, the dying declaration can be considered enough for a conviction.

Judgement

After a thorough investigation, the Supreme Court found that some modifications had been done in the dying declaration and that the HC of Karnataka had unnecessarily depended a lot on just the dying declaration. The Court also concluded that since Jayamma was in a lot of pain she might have not been in a state to give a proper statement before dying. Hence, the Apex Court decided to acquit the appellants in the present case. The Court also mentioned that high accuracy had been maintained in the dying declaration which was unlikely for an individual who was in such physical condition and also Jayamma was not that literate to describe the whole situation with such details. Jayamma was alive for almost 30 hours, but the authorities did not contact the Executive Magistrate to record the statement of the patient. Hence, the apex court was not convinced enough to accept the dying declaration as the sole piece of evidence to convict the appellants. The Court also pointed out the fact that it was not a family member who had complained to the police, instead it was the doctor. Thus, this also questions the homicidal nature of death. Apart from these, it was also held that it was unfair on the High Court’s part to exercise “section 378” of the CrPC, that too when the trial court gave a right decision.

Conclusion

This is an important judgement that primarily talks about the usage of dying declaration as the sole piece of evidence in any case. A point that should be noted here is that it took so many years to serve justice to Jayamma and her family. During this course of time, the family had to go through a lot. There are so many cases in India that are pending, and the party that suffers the most in these cases are one of the parties. Also, it is not fair to assume that the investigation done by lower courts is inadequate or incorrect. The Supreme Court had given a very detailed and reasonable judgement in this case. This judgement is one of the most significant judgements of 2021.

This article is written by Aaratrika Bal student at National Law University Odisha.

CITATION

5 US 137

APPELLANT

William Marbury

RESPONDENT

James Madison

DECIDED ON

24 February 1803

COURT

US Supreme Court

JUDGES

Justice John Marshall

AREA OF LAW

Doctrine of Judicial review

BACKGROUND

The most controversial election in the history of America is the one occurred in 1800, where the anti- federalists run by democratic republican and vice-president, Thomas Jefferson took the office. Due to the fright of losing the influence, the federalist led congress passed the midnight judges act which was earlier called as “judiciary act of 1801”.  Under this act, they re- organised the federal judiciary and the District of Columbia organic act by appointing new justiceship and judgeship. The head of federalist, john Adams appointed several federalists as judges and they are thus called as “midnight judges or midnight justices of peace” and were approved by congress. As a final step the commissions are supposed to be physically delivered to the appointees by the secretary of state and that was john Marshall.

ISSUE

John Marshall, the chief justice, was unable to deliver the commissions before the Jefferson sworn in the next day.  The undelivered commissions were still in the office even after Madison took in charge as the secretary of the nation. And he was instructed by Jefferson not to approve the new commissions. One among them who never got the commission was William marbury. Congress sanctioned US Supreme Court to issue the writ of mandamus under judiciary act, 1789 where a case was filed against Madison by marbury in United States Supreme Court under its original jurisdiction to bring Madison deliver the commission.

JUDGEMENT

At the initial stage, the chief justice, marshal stated that: “marbury had been lawfully appointed and confirmed as the justice of peace and therefore had a right to his commission”. But unfortunately, court denied to issue the writ by stating that the section of the judiciary act, 1789 is unconstitutional. The section was at odds with the article III of constitution which specifically lays out the original jurisdiction, though it empowers congress to pass laws related to court’s appellate jurisdiction.

RATIO DECIDENDI

• In this landmark case, Supreme Court stated the act to be unconstitutional as it tends to expand the Supreme Court’s original jurisdiction beyond the limit referred in constitution.
• It was through this case the idea of “judicial review” got established.

CONCLUSION

The case was stated as a landmark case in the history which led to the emergence of concept ‘Judicial review”.

Case Number

Civil Appeal No. 5837 of 2006 with Contempt Petition (C) No. 38 of 2006.

Equivalent citation

(2007) 3 SCC 169.

Bench

S.B. Sinha,  Markandey Katju.

Date Of Judgment

 15/12/2006

Relevant Act

The Protection of Women from Domestic Violence Act, 2005

Facts

The petitioner Smt. Taruna Batra was married to Amit Batra, son of the respondent, on 14^th April 2000. After the marriage, Taruna Batra was living with Amit Batra in her in-law’s house. Amit Batra has filed a divorce petition against his wife. In response, Taruna Batra also filed an F.I.R. against his husband, mother-in-law, father-in-law, and sister-in-law under Indian Penal Code Section 406, 498A, 506, and 34. They were arrested by police and after three days they got bail. Taruna Batra started living in her mother’s house. Later, she tried to enter the appellant’s house, but she could not enter because of the lock. Amit Batra had bought a house in Ghaziabad and was living there. 

Arguments 

The argument made by the petitioner

Smt. Trauma Batra has raised the issue that she has the right to live in the respondent’s house because it is her matrimonial house.

The argument made by respondent

The petitioner has no right because it cannot be her matrimonial house. After all, her husband is not living in the suit property. Her matrimonial house had shifted to her husband’s new house.

The issue before the Court

• A woman has the right to reside in the shared household of her husband. Shared household which is defined under Section 2(s) of the Domestic Violence Act, 2005. 

Lower Court Judgment 

The Senior Civil Judge held that Amit Batra was not living with his parents at their house. Hence, home does not mean where the wife was residing. The respondent had only right to her husband’s property.

After the Lower Court decision Smt. Trauma Batra filed a petition in the High court under Article 227.

High Court Judgment 

The High Court held that in India, there is no specific law like the British Matrimonial Homes Act, 1967. The rights may be provided under any statute against the husband’s property and but not against in law’s house. The suit property belongs to her mother-in-law and it does not belong to her husband.

Supreme Court Judgment

The Supreme Court held that a wife is entitled to reside in a shared household which is defined under Section 2(s) Protection of Women from Domestic Violence Act, 2005. A Shared household means the house belongs or is taken by the aggrieved person or the husband and property which belongs to a joint family where the husband is a member. The court decided Smt. Trauma Batra has the right to reside in her matrimonial home. But the Court also held that the wife has no right to reside in the residence which is owned by her in-laws whether it is a matrimonial home. The court observed the High Court decision and disagreed with the High Court concerning the Matrimonial Homes Act which does not exist in India.

Conclusion

The issue is ruling in the case that the wife has the right to reside in a shared household where the husband owns some share. In the decision of the Supreme Court, there is some fallacy in the definition of the shared household. 

The case analysis has been done by Prachi Yadav, a 2nd-year student from Mody University of Science and Technology, Lakshmangarh, Rajasthan.

The case analysis has been edited by Shubham Yadav, a 4th-year Law student of Banasthali Vidyapith.

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-Report by Jayseeka Virdi

The Supreme Court on Friday set aside the judgment and decree passed by the First Appellate Court and that of the High Court and passed a decree in favor of the plaintiffs. A bench consisting of Justice Hemant Gupta, A.S. Bopanna said that the suit for redemption of the mortgaged property filed by the appellants must be allowed.

PLAINTIFF’S CONTENTION

The plaintiff relied on various cases to prove its stand, they contended that in Pandit Chunchun Jha v. Sheikh Ebadat Ali & Anr., the suit by the plaintiff for redemption was dismissed by the High Court but when an appeal was filed in the Supreme Court, that appeal was approved. Further, that contended that in the case of Shri Bhaskar Waman Joshi v. Shri Narayan Rambilas Agarwal, the Supreme Court upheld the right of redemption. Counsel for the plaintiff relied on the evidence of the conduct of transferors/defendants which indicated the character of the transaction as a sale. (but this was further dismissed by the Court). A complete reading of the document would show that a sum of Rs.3,000/- was taken as a loan from the defendant for household expenses. The same was to be returned and the defendant was bound to retransfer the land. The condition that if the plaintiff is not able to pay the loan amount within one year, the document will be taken as a permanent sale deed is a contentious clause between the parties.

KEY HIGHLIGHTS

• SC heard the CIVIL APPEAL NO. 10197 OF 2010 filed by the plaintiff which challenges the judgment passed by the HC which affirmed the order passed by the First Appellate Court.
• Both the Courts ruled in favor of the defendants and dismissed the suit for redemption filed by the plaintiffs of the mortgaged property.
• The petitioner wanted his land back from the defendant by giving him the amount he took from him as per the document, and the defendant denied giving him back his. The plaintiff/appellant through this appeal prays in the SC for the redemption of his lands. The SC ruled in favor of the plaintiff and allowed the appeal.

DEFENDANT’S CONTENTION

The learned counsel relied on the judgment of Vanchalabai Raghunath Ithape (Dead) by LR v. Shankarrao Baburao Bhilare (Dead) by LRs & Ors. 10. In this case, the suit for redemption filed by them was maintained. But he said that the cases reported in Umabai and Tulsi were not brought to the notice of this Court. The learned counsel contended that, since such judgments were not being considered, the judgment of the Supreme Court in the Vanchalabai case could not form a valid and binding precedent on the Court. The learned counsel for the defendants further referred to Dharmaji Shankar Shinde & Ors. v. Rajaram Shripad Joshi (Dead) through LRs & Ors, the suit of redemption filed by the plaintiffs was dismissed by this Court. Another judgment relied on by him was Sopan (Dead) through his LR v. Syed Nabi. Learned counsel for the defendants also referred to the fact that the suit by plaintiffs was filed after twenty years of the document being executed and, during the time, the defendants had improved the land. Therefore, because of this, the plaintiff was not allowed to demand redemption.

SUPREME COURT ALLOWED THE APPEAL

The Supreme Court allowed the appeal by the plaintiffs and said that the defendant’s contention that the plaintiff had filed suit for redemption after 20 years of execution of the document could not be accepted because the limitation period for filing a suit for redemption was 30 years. Therefore, the Court said that they found the order of the First Appellate Court which accepted the appeal of the defendants and dismissed the suit for redemption was not legally sustainable, and the same goes for the order of the High Court.

What are the key provisions of the Transfer of Property Act, 1882?

• Section 63 of the Act states that accession by the mortgagee, during the mortgage being continued, the mortgagor shall be allowed to such accession on redemption, but if a contract has been signed to the contrary then he shall not be entitled to accession even in redemption.
• Section 63(a) of the Act, liability of mortgagor to pay for improvement arises only if the mortgagee incurred the costs in an unavoidable situation, for example, to prevent it from destroying or necessity arose because of the security being inadequate or to comply with an order bypassed a competent authority.
• Section 58(c) of the Act, as amended in the year 1929 and a proviso was added to the section, which said that no transaction will be considered to be a mortgage, unless and until such condition is already present in the particular document which affects the sale.

Discuss the provisions related to Transfer of Property Act

• Section 5
• Section 7
• Section 54
• Section 58(c)

The Supreme Court on 16th August, 2021, criticized the Tribunals Reforms Bill 2021 introduced by the Finance Minister, Ms. Nirmala Sitharaman, on August 2, 2021, and passed by the Parliament last week. The Bill reenacts the same provisions struck down by the Court in the Madras Bar Association vs Union Of India on 14 July 2021.

The Supreme Court asked the Solicitor General of India why the bill was introduced with the provisions struck down by the Court. CJI NV Ramana said that the Court was not commenting on the Parliament proceedings, but at least the Court must know why they introduced the Bill despite it being struck down by the Court. The CJI said that the Finance Minister replied to the court that it did not strike down the provisions on grounds of unconstitutionality. Further, the CJI went on to say if the statement of reasons made by the Minister can be presented in the Court.

The Solicitor General replied that since the Bill was yet to become an Act, he did not have the authority to give any response. He further requested a time order to consult AG KK Venugopal, so that he could make a statement in the Court. The Court expressed its concerns about the vacancies remaining unfilled in Tribunals. The CJI quoted to the Solicitor General observations from the judgment of the Madras Bar Association case, where the Court concluded how it was necessary to keep Tribunals free of executive influence, and how justice can be achieved only when these Tribunals could function independently of any executive control.

The CJI added some other portions from the same judgment which disapproved of the practice of legislature making laws to nullify judgments. The Solicitor General requested ten more days to make a statement regarding the filling up of vacancies, the CJI replied that enough number of vacancies were given last time too.

The Solicitor General assured that progress can be made in the next ten days as the concerns of the Court were communicated to the Centre. He further added that appointments were “under process”.

CJI replied that they have been hearing these words “under process” for too long and that now these words meant nothing. Further, he gave ten days and hoped that appointments will be completed within these days. The bench said that only because the presence of such issues should not be a hindrance in the way of appointing members to Tribunals, ten more days were given.

Report by Jayseeka Virdi