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Mob attacks on police- “New Found Behaviour Amongst Citizens of disobeying law. Allahabad HC expresses its concern”

Earlier, it was alleged that two young men were asked to stop their two-wheeler for the purpose of a roadside check point by the police. The two men, moved forward and did not stop. This led to an accident where both of them injured themselves. They were sent away for medical assistance. Thereafter, a big congregation assembled, who indulged in protest against the police. They blocked the road. The applicants assaulted the police with sticks and iron rods.

On 8th October, 2020, the Allahabad High Court declined to quash a charge sheet filed against the applicants accused of assaulting the police with sticks and iron rods. The Bench of Justice J.J. Mihir was hearing two applicants, who challenged the proceedings of the case under Section 147, 148, 149 and 323 of IPC.  The submission of the counsel for the applicants was that they were one of the many persons credited with the role of rioting and evidence against them is all made up.

The Allahabad High Court stated that from the papers provided by the police it shows that it is a case which shows new found behaviour amongst citizens of disobeying the law. The court also mentioned that the charge was not true and it has to be tested at the trial. The applicants request to quash the charge sheet is preposterous. There is no abuse of process of court involved in the matter. The applicant was ultimately rejected.

 

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“Confidence of people in judiciary at stake, Plea in SC against Andhra Govt’s Press conference accusing justice NV Ramana and HC Judges.”

A please has been moved against Andhra Pradesh Chief Minister, Andhra Pradesh Government’s press conference revealing his complaint to CJI SA Bobde against Supreme Court Judge Justice NV Ramana and judges of AP High Court. Claiming the grounds, inter alia, the act and deed of the respondent is an attempt to tarnish the Majesty of the Highest Court of the Country, the plea states that the press conference by the chief minister made false allegations against an Hon’ble judge of this court.

Further it was stated that the freedom of speech and expression guaranteed under Article 19(1)(a) of the Constitution is subject to reasonable restrictions in relation to contempt of courts and defamation. The Plea stipulates that the Chief Minister is under oath and therefore, is bounded by the judiciary to respect it.

On 11th October, Y.S Jagan Mohan Reddy, the chief Minister of Andhra Pradesh, wrote a complaint to the Chief Justice of India stating that some High Court judges are attempting to protect the interests of the opposition party. Furthermore, the selection of the time like this of making such allegations is highly suspicious and doubtful as the hon’ble judge is the service of Indian Judiciary and public since long.

Last Sunday, the advisor of the CM revealed to the media that the next in line chief justice of India was influencing the administration of justice in the High Court.

 

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Hindu Succession Act

‘A son is a son till he gets a wife, but a daughter is a daughter all her life.’ With the fast pacing life and modernization there have been many amendments made in our Indian Constitution to safeguard the rights of women of our country. One of them, the most controversial one, is the Hindu Succession Act. The spot of Hindu women has always been imperiled to male members of the family even in accordance with the Dharmashastras.  Therefore, when the Hindu Succession Act was enacted in 1956; the lawmakers did not find any need for giving equal rights to daughters in the ancestral property of the father, due to their belief that the daughter will be a part of another family after her marriage and thus should not have right to inherit anything from her father’s property.

Partition is the compensation of the status of Joint Hindu Family, known as Hindu Family. As stated in the Hindu Law once the status of Hindu Family is put to an end, there is hypothetical division of properties among the members and the joint ownership of the property comes to an end. Partition could be partial as well. Our freedom fighters such as DR. B.R. Ambedkar fought for the basic rights and formulated the “HINDU CODE BILL” but yet, it was in vain. None of the social reforms made a difference in the status of the women of our country.

The framers of the Indian Constitution took note of the contrary and biased position of women in society and took special care to ensure that the State took positive steps to give them equal status. Articles 14, 15(2) and (3) and 16 of the Constitution of India thus not only constrain judgement against women but in suitable circumstances provide protective judgement in favour of women. These provisions are part of the Fundamental Rights guaranteed by the Constitution. Part IV of the Constitution which talks about the Directive Principles which are on similar lines as fundamental in the governance of the State and inter alia also provide that the State shall ensure equality between man and woman. Nonetheless these constitutional commands given more than fifty years ago, a woman is still abandoned in her own biological family as well as in the family she marries into because of unconcealed disrespect and unjustified abuse of these provisions by some of the personal laws. To carry out reforms to remove the inequalities and incapacities suffered by Hindu women, the Hindu Succession Act, 1956 was enacted and came into force on 17th June, 1956. It is laid down for all the Hindus including Buddhists, Jains and Sikhs. In the year 1986 the State of Andra Pradesh, in the year 1990 Tamil Nadu and in the year 1994 the State of Maharashtra and the State of Karnataka added Chapter II-A to Hindu Succession Act, 1956 containing Section 29-A, 29-B and 29-C, distinguishing the daughter in Hindu joint family governed by Mitakshara Law as an heir by birth in her own right in the same manner as the son having same right in the ancestral property as she would have had, if she were a son and comprehensive of the right to entitlement of survivorship subject to same liabilities and disabilities in respect thereto as that of a son. On partition, equivalent share will be allotted to a son as it is allotted to the daughters as a coparcener. Nevertheless, according to the Maharashtra Amendment Act 1994, said Chapter was not applicable to a daughter married before commencement of the Hindu Succession Maharashtra (Amendment) Act, 1994 which came into effect from June 22nd, 2014.By the said amendment the privileged right to gain property in respect of interest in any immovable property of intestate or in any business carried on according to him or her was also given to the daughter.

The Hindu Succession (Amendment) Act, 2005 is a milestone towards women empowerment. This Act of 2005 is an effort to remove the discernment by giving equal rights to daughters in the ancestral property as the sons have. Section 6 of the amendment act has an intervening effect, so far as the constitution of ancestral, partition of a coparcenary property and succession of interest of deceased member (male or female) are concerned. It also exceeds all customs and practices of Shashtric Law in this regard.

After a long process of around 50 years, the Centre in 2005 passed the amendment Act to eradicate gender discrimination in the ancestral property. The Pre- 2005 Amendment Act or the Hindu Succession Act, 1956 was discriminatory on the grounds that women were not considered as rightful heirs to receive the ancestral property since birth like the sons.

The Central Government raised objection to the idea of giving reflective operation to the 2005 amendment law because a coparcener in Hindu family law has a right to seek partition. For the same reason, the law secured a cut-off date of December 20, 2004 to dodge reopening of any settlement or partition verdict prior to this date. The court gave reception to the 20th December, 2004 (date) as cut-off but focused on the fact that if a daughter seeks partition or a share, the same cannot be denied on the basis of an oral family settlement but on a final decree of a court or a registered family settlement. If an oral settlement is to be presented, the bench held, it has to be supported “by public documents.”

There were various changes after the 2005 amendment: –

  • The act revised the provision which excluded daughters from ancestral property.
  • Coparcener property shall be allotted to the daughter as is allotted to sons if a Hindu passes away.
  • A daughter is entitled to demand a partition of the HUF.
  • A daughter is also eligible to position of her share in the coparcenary property at her own will.
  • If the female coparcener dies before partition, then children of such coparcener would be qualified for allotment assuming a partition had taken place immediately before her demise.

There was a lot of Confusion over the applicability of Section 6 for instance, In the landmark case of Prakash and others v. Phulavati (2016), the apex court opined that “The rights of coparceners under amendment act 2005 are applicable to living daughters of living coparceners as on 9/9/2005 irrespective of the birth date of daughters.” It simply means that If a coparcener(father) had passed away prior to Sept 9, 2005, the living daughter of the coparcener would have no right to coparcenary property in such case.

The Supreme Court in the case of Danamma v. Amar (2018), held that if the father passed away prior to date 09.09.2005 (the date on which amendment came) and a prior suit is pending for partition by a male coparcener, the female coparceners will be entitled to a share. These two cases created an era of confusion on the interpretation of Section 6 of the Hindu Succession (Amendment) Act 2005. 

Lastly, according to the recent judgment passed, the 2005 amendment Act has been declared retrospective, and daughters are given equal rights over the ancestral property of their fathers even if the father of the daughter died prior to September 9th, 2005. With this we all see a ray of light for the process of women empowerment.

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Child Sexual Abuse

Child sexual abuse also called child molestation, is a form of child abuse in which an older adolescent uses a child for sexual stimulation. Forms of child sexual abuse include engaging in sexual activities with a child such as (whether by asking or pressuring, or by other means) indecent exposure, child grooming, and child sexual exploitation, including using a child to produce child pornography.

Features that describe child sexual abuse include:

  • The culprit is typically a known and trusted caregiver.
  • Child sexual abuse often happens over many weeks or even years.
  • The sexual abuse of children frequently occurs as repeated episodes that become more aggressive with time. Culprits usually engage the child in a gradual process of sexualizing the relationship over time (i.e. grooming).
  • Incest abuse accounts for about one third of all child sexual abuse cases.

Why does child sexual abuse take place?

Till date, there isn’t a particular answer justified for this, but as per various interviews, statistics and much more it has been ruled down to a few reasons.

  • People who sexually abuse often have many victims and rarely disclose the actual motive of their abusive behaviour.
  • People who sexually abuse are tremendously resourceful in the ways that they can put blame onto victims and minimise their behaviour.
  • All sexually abusive behaviour is a matter of choice and people who sexually abuse choose to abuse by their own will.
  • Some people may be sexually attracted to children and if they act out their feelings of sexual attraction toward children that is also sexual abuse.
  • Some people may be generally sexually attracted to other adults but may sexually approach children when they are under a lot of stress, like losing a job or getting a divorce.
  • Some people who sexually abuse were victims of abuse or neglect as children.
  • Some people sexually abuse children so that they can feel the control and influence their feelings in their relationships with other adults or in their life.

Nonetheless, none of these reasons justify sexual relationship between an adult and a child. No matter what the reason for the abuse, the effects on children are severe and can last a lifetime.

In most of the situations, where children are abused it is by people who the children know. The abuser may be a parent, a grandparent, a caregiver, brother, sister, neighbour, teacher and so on. Often the person who sexually abused is in a position of trust and can take advantage of the opportunities that being trusted provides in order to sexually abuse.

Laws laid down in the Indian Constitution-

  1. The Protection of Children from Sexual Offenses Act (POCSO) came into force on November 14, 2012, and was formulated to deal with offences including child sexual abuse and child pornography. The Act through its 46 provisions increased the scope of reporting offences against children, which were not earlier covered under the Indian Penal Code (IPC). This expanded the criminal penalty for aggravated penetrative sexual assault to include punishment for abuse by a person in position of trust or authority including public servants, police, armed forces, and management or staff of an educational or religious institution.
  2. The POCSO Act defines offences of sexual assault, sexual harassment, pornography and safeguarding the interest and well-being of children. It also sets out a child-friendly procedure regarding the recording of evidence, investigation and trial of offences, establishment of special courts and speedy trial of cases. The aim of the act is to provide protection to the child at every stage of judicial process.
  3. The Constitution of India provides that the state, as a directive principle of state policy, must seek to ensure “that children are given opportunities and facilities to develop in a healthy manner and in conditions of freedom and dignity and that childhood and youth are protected against exploitation and against moral and material abandonment.”  The rights to equality, to protection of life, to personal liberty, and against exploitation are enshrined in articles 14–17, 21, 23, and 24 of the Constitution. Article 15, which protects against discrimination on various grounds, contains an important provision that “nothing in this article shall prevent the State from making any special provision for women and children.”
  4. The Policy also provides that the State shall protect all children from all forms of violence and abuse, harm, neglect, stigma, discrimination, deprivation, exploitation including economic exploitation and sexual exploitation, abandonment, separation, abduction, sale or trafficking for any purpose or in any form, pornography, alcohol and substance abuse, or any other activity that takes undue advantage of them, or harms their personhood or affects their development.
  5. Lastly, the State shall promote child friendly jurisprudence, enact progressive legislation, build a preventive and responsive child protection system, including emergency outreach services, and promote effective enforcement of punitive legislative and administrative measures against all forms of child abuse and neglect to comprehensively address issues related to child protection.

Juvenile Justice (Care and Protection of Children) Act, 2015

The Juvenile Justice Act, 2015, which received presidential assent on December 31, 2015, repealed and replaced a 2000 Act by the same name.  In September 2016, the government delivered the Juvenile Justice Model Rules, 2016, which set out some of the procedures for implementing the Act.

Section 2 enumerates definitions of the terms “child,” “juvenile”, “child in need of care and protection,” etc.  A “child” is defined under the act as “a person who has not completed eighteen years of age.” A “child in need of care and protection” is defined as

(i) who is found without any home or settled place of abode and without any ostensible means of subsistence; or

(ii) who is found working in contravention of labour laws for the time being in force or is found begging, or living on the street; or

(iv) who is mentally ill or mentally or physically challenged or suffering from terminal or incurable disease, having no one to support or look after or having parents or guardians unfit to take care, if found so by the Board or the Committee; or

(v) who has a parent or guardian and such parent or guardian is found to be unfit or incapacitated, by the Committee or the Board, to care for and protect the safety and well-being of the child; or

(vi) who does not have parents and no one is willing to take care of, or whose parents have abandoned or surrendered him; or

(vii) who is missing or is a run-away child, or whose parents cannot be found after making rational inquiry in such manner as may be prescribed; or

(viii) who has been or is being or is likely to be abused, tortured or exploited for the purpose of sexual abuse or illegal acts; or

(ix) who is found helpless and is likely to be inducted into drug abuse or trafficking; or

(x) who is being or is likely to be abused for unconscionable gains; or

(xi) who is victim of or affected by any armed conflict, civil unrest or natural calamity.

In spite of so many law reforms, there is a case of child sexual abuse almost every minute in every corner of India. One of the most highlighted case was the Unnao Rape case. The facts of the case were that a 17-year-old was gang raped and left to die. This case gained importance, after the father of the victim was arrested wrongfully. The rape survivor tried to burn herself outside the residence of Yogi Adityanath. After long court proceedings, the culprits were arrested. This case is the perfect example of sexual child abuse. A teenage girl who had her entire life ahead of her was now scarred for life.

Recently, The Protection of Children from Sexual offences amendment bill was passed. Many more reforms can be brought about, for example, meeting the survivors of the abuse and helping them and providing a better life, making a strict judiciary system for such abusers and lastly create awareness at a general level. It will take years to eradicate child abuse, but as a responsible citizen one should start from the root.

 

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“Cancellation of Bail, Jurisdiction of Special Courts in cases involving SC/ST Act and POCSO offences: What MP HC held”

The Madhya Pradesh High Court lately had an occasion to explain certain aspects of the law concerning the cancellation of bail in cases under the Scheduled Caste and Scheduled Tribe (Prevention of Atrocities) Act, 1989 (SC/ST Act).

While deciding a matter, the High Court held that a preliminary objection made by the accused stating that the SC/ST Act did not have any provisions concerning the cancellation of bail cannot be entertained. Justice Pathak rejected this contention inter alia and stated that a victim cannot be concentrated remediless, even if the accused gets bail under Section 439 of CrPC. The Court continued to examine which provision would be applicable in matters regarding bail where the case involves both SC/ST Act as well as POCSO Act offences.

In this situation, the High Court continued to examine the bail provisions applicable in POCSO trials. Hence, it took note of Section 31 of the POCSO Act which provided that provisions of the CrPC would be applicable in trials under this Act. Given the questions of law clarified in this case, a copy of the judgment has also been directed to be placed before the Acting Chief Justice of the Court so that it may be distributed among subordinate judges for information and agreement.

The Judge made the annotations in the backdrop in submissions made by the accused in this case that he has been carrying out voluntary community service by working as an ambulance operator. Ultimately, the application to cancel the bail granted to the accused was rejected, The Judge added that another application to cancel bail may be moved if there is any grievance that the accused is actually harassing or embarrassing the victim.

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“[TRP Scam] Popular tastes being what they are, entertainment sells: What the Bombay HC held in a 2001 judgment”

The ongoing Television Rating Points (TRP) scam which brings news channels under the spotlight for supposedly manipulating viewership numbers, also brings into mind a Bombay High Court judgement which was passed almost two decades ago.

Back in 2001, the High Court heard a plea filed by PS Deodhar, who prayed for directions to the Union Ministry of Information & Broadcasting to set up an independent body to supervise TRPs in relation to television channels and programmes. The advertisement rates are determined by private broadcasters on the basis of their TRPs, Deodhar made a submission that the methods used by the TRP measuring agencies to determine viewership were flawed and skewed towards urban homes.

The Bench of now Supreme Court judge, Justice Dr. DY Chandrachud and Justice B Singh, rejected Deodhar’s plea and directed him to place his complaints before the appropriate authority in the Central government.

The Court had stated that these are matters on which, it would not be suitable for the Bombay High Court to grant the relief sought, given the limits of the jurisdiction of  the Bombay High Court under Article 226 of the Constitution.

The Bombay High Court, just observed that accepting an agency’s data would depend on the reliability of that data, and that there was no obligation on the advertiser or the marketing agencies to trust on the data provided by the TRP agency. The Bombay High Court decided that it is normal knowledge that the entertainment value of a programme on television determines its ability to attract advertisements and hence its revenue generating potential.

Whether this disaster will lead to the government stepping in to regulate the current system of TRP ratings remains to be seen. The controversy appears to be one that will keep the media industry tuned in for days to come.

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“After Delhi HC, Chhattisgarh HC grants AltNews’ Mohammed Zubair interim relief in FIR for allegedly harassing minor online via tweet”

FIRs were registered after Zubair responded to an abusive tweet saying “Does your good granddaughter know about your temporary job of harassing people on social media? I suggest you change your profile picture. “However, Zubair has released a photo of the child in a tweet he posted on August 6.

On September 9, the Delhi High Court granted Zubair temporary protection, before filing the case for the December 8 hearing. Zubair had moved to the Chhattisgarh High Court to dismiss the FIR in Raipur over the tweet. The FIR has discussed the provisions of the Information Technology Act, the Indian Penal Code and the Protection of Children from Sexual Offenses (POCSO) Act.

The Court noted that the submissions made by Attorney General Colin Gonsalves and Advocate Kishore Narayan who represented Zubair stated the that allegations similar to those made at Raipur FIR were registered with him in Delhi. The second issue, with the same facts, was not accepted in the recent Supreme Court decision in the case of Arnab Goswami, and was similarly sent.

The Supreme Court also ruled that this was a fair trial for the provision of temporary assistance in the favour of the Zubair applicant, because the Delhi High Court had already granted him temporary relief on the application of the same issue, after considering the facts and documents.

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“Can “unbranded” goods sold by a shop claiming Trademark be viewed as “branded” for tax purposes? Madras HC to decide”

Can idli be traded by popular restaurant chain Murugan idlis be viewed as “branded” idlis for tax purposes?  Section 2 (9) of the 2006 Act explains “branded” as any good traded under a name or a trade mark registered or pending registration of transfer under the Trade Marks Act. Appropriately, suppliers of unbranded food or drink are subject to charge of a lesser tax rate i.e. 5% as per Section 7 (1) (b) of the Tamil Nadu VAT Act.

Effectually, the Bench of Chief Justice AP Sahi and Justice Senthilkumar Ramamoorthy was judged that the State is thereby treating any dealer holding a trademark from being ineligible to sell “unbranded” goods.

Referring to supplies which concern goods without a brand name, Sankaranarayanan stated that the legislature had clearly proposed for goods sold without a brand name. This cannot be cancelled by an interpretation of the law which will deem that everything has a brand name, he argued.

During the course of submissions today, the Bench orally thought that the provisions of both the Tamil Nadu VAT Act and the Trademarks Act should be understood with specific reference to the goods. In response to this, Senior Advocate Sankaranarayanan expressed his agreement.

In the submission that was made by Special Government Pleader for taxes, Mohammed Shafiq that the law applicable in these cases has been laid down by the Supreme Court of India in the Australian Cookie Man case.

The cases regarding the challenge to Section 2 (9) of the Tamil Nadu VAT Act has, accordingly, been forwarded to be taken up on November 18. Pleadings by all the parties are expected to be completed in the meanwhile, the Court added.

 

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“Farmers Acts: Bhartiya Kisan Party moves Supreme Court, says Parliament could not have made laws on subject under State List”

These regulations recently came into force after the President gave his assent to them on September 27 amidst widespread resistance and opposition.

The Bhartiya Kisan Party has moved to the Supreme Court requesting for the three afresh passed farmers’ legislations to be declared as unconstitutional.

The petition has challenged three newly passed laws:[1]

  • The Farmers (Empowerment and Protection) Agreement of Price Assurance and Farm Services Act, 2020,
  • The Farmers Produce Trade and Commerce (Promotion and Facilitation) Act, 2020, and
  • The 2020 Amendment to the Essential Commodities Act.

The petition filed by the Bhartiya Kisan Party raises the question of the passage of the legislations being against the basic structure of the Constitution, citing Article 246 of the Constitution. This exclusivity of power in terms of the power to legislate on subjects in List I (Union List) and List II (State List) has been also repeated by the Supreme Court in its judgments. However, this would not arise in matters where the exclusive power to legislate vests with the State. This opinion was laid down by the Apex Court in its 1985 judgment in the case of ITC Ltd. Etc v. State Of Karnataka.

The plea further states that one of the roles of the judiciary is also to inspect the legitimacy of the laws passed by the legislature, especially in the backdrop of a number of landmark judgments holding that no law or constitutional amendment can tolerate if it is offensive of the basic structure.

It has also been prayed that the Court pass directions to reinforce the existing Agriculture Produce Marketing Committees (APMCs) and that Minimum Support Price (MSP) be implemented in agricultural markets for the benefit of farmers.

[1] Source- https://www.barandbench.com/news/litigation/farmers-acts-bhartiya-kisan-party-moves-supreme-court-challenging-validity

 

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“Uncalled for, but not contempt: AG KK Venugopal declines consent for contempt against Digvijay Singh over tweets against UP’S SSF”

Attorney general KK Venugopal has failed to grant consent to initiate criminal contempt of court proceedings against Congress Rajya Sabha MP, Digvijay Singh over his tweets criticizing the creation of a special security force by the Uttar Pradesh Government.

The two tweets, posted on 15th September stated that in Uttar Pradesh, Yogi Adityanath has formed the Special Security Force [ SSF] in which the police can raid someone’s house without any warrant and arrest anyone. The SSF Act, 2020 empowers the UP government to establish a special security force for the better protection of persons, their residential premises and vital and strategic installations belonging to the state. Section 10 of the Act empowers the special security force to arrest any person without an arrest warrant if the person is suspected of having links to any cognisable offence concerning the notified establishments or if the authorities have reasons to believe that he is taking steps to commit such an offence. Section 11 of the Act gives power to the special security force to arrest the person and seize his belongings without a warrant.

The tweet by Digvijay Singh was that does Indian Constitution permits such a law and if the country’s judiciary consider such a law unconstitutional.

Responding to this, Advocate Suman Sudan has initiated the contempt of court. In response to this, the Attorney general KK Venugopal. Said that he is in the receipt of the request made by Sudan in order to take an action for criminal contempt against Digvijay Singh on his twitter. Nonetheless, Attorney general KK Venugopal states that he does not think these tweets attempts to criminal contempt.

The tweets had hurt the sentiments and have the potential to shake the faith of our country. Sudan also stated that these tweets can mislead and misguide and also deviate the public into the state of lawlessness.