The Supreme Court dismisses Chattisgarh government petition seeking for examination of additional witnesses in the Jheeram Ghati Naxal Attack case

The Division Bench of Justices Ashok Bhushan, R Subhash Reddy and MR Shah Supreme Court on 29th September set off a petition filed by the Chhattisgarh government asking for examination of additional witnesses in the Jheeram Ghati Naxal attack case of 2013.

The Chhattisgarh state government had earlier approached the High Court seeking a direction for a judicial commission to be set up for an investigation on the Jheeram Ghati Naxal attack, to examine the additional witnesses in the case. Although the High Court had dismissed the plea yet asked the State to approach the Supreme Court.

Justice Bhushan strongly stated, “the judicial commission had made it clear that it would not accept more witness statements after October 2019.”

Senior Advocate Abhishek Manu Singhvi, advocated from the petitioner side demanded that the commission can examine five more witnesses.

“This is such an important incident. Why can’t they examine five witnesses? This is not something cast in stone,” said Singhvi.

The Court noted that when the commission invited those who wanted to be examined to file affidavits, no one did so.

“How can they be examined now?” the Bench asked.

While dismissing the appeal, the Court observed,

“You wanted the expert witness to be examined, but commission did not agree. You may have extended the commission’s tenure but it has closed the proceedings.”

Advocate Singhvi earlier told the bench that the commission had rejected the request to record the testimony of six crucial witnesses, and had closed the probe.

Singhvi had briefed the bench that the commission had also refused to summon BK Ponwar, Director of the Jungle Warfare Training School at Kanker, for recording his evidence as an expert.

“No one from the list of six witnesses have been examined by the commission,” Singhvi said, adding that the additional terms of the reference of the commission were issued and accepted in September 2019.

Singhvi had further enquired as to what happened to these additional terms of reference, as the examination of old witnesses continued without the examination of the additional witnesses.

 

Sources: https://www.barandbench.com/news/litigation/jheeram-ghati-naxal-attack-supreme-court-dismisses-plea-examination-additional-witnesses

K.S.Puttaswamy(Retd) vs Union Of India

CASE: Justice K.S.Puttaswamy(Retd) vs Union Of India (2017) 10 SCC 1

JUDGES: Justice J.S. Khehar, Justice S. K. Kaul, Justice D Y. Chandrachaud, Justice R. F. Nariman, Justice S.A. Bobde, Justice S.A. Nazeer, Justice R.K. Agrawal, Justice J. Chelameswar and Justice A. M. Sapre.

BACKGROUND: The Aadhaar Scheme was launched in the year 2010 by the then Prime Minister Dr. Manmohan Singh. The Aadhaar is a 12-digit unique identification number that can be obtained by residents of India, based on their biometric and demographic data. The data is collected by the Unique Identification Authority of India (UIDAI). In 2012, when three oil companies initiated a pilot project in Mysore to have LPG refills linked to the ID for which Aadhar was mandatory. A petition was filed challenging constitutionality of Aadhaar.

FACTS:

The Government of India, commenced a project called ‘Unique Identification for BPL Families’. For this purpose, a committee was set up which suggested forming of a Unique Identification database. Retired Justice K S Puttaswamy and Mr. Parvesh Sharma filed a PIL Writ Petition (Civil) No. 494 of 2012 in SC challenging the constitutionality of Aadhaar because it is violating the right to privacy. This had been established on reference from the 9-judge Bench to determine whether or not the right to privacy was guaranteed as a fundamental right under the constitution of India following past decisions from Supreme Court benches.

 

MAIN ISSUES RAISED:

  1. Whether the right to privacy is an intrinsic part of the right to life and personal liberty under Article 21 and a part of the freedoms guaranteed by Part III of the Constitution?
  2. Whether or not the decision made by the Court that there are no such fundamental rights in M.P. Sharma & Ors. vs. Satish Chandra, DM, Delhi & Ors. and also, in Kharak Singh vs. The State of U.P, is that the correct in law?

 

JUDGEMENT ANALYSIS:

The nine-judge bench of the Supreme Court unanimously recognized that the Constitution guaranteed the right to privacy as an intrinsic part of the right to life and personal liberty under Article 21.

The Court revoked the M.P. Sharma & Ors. vs. Satish Chandra, DM, Delhi & Ors. and Kharak Singh vs. The State of U.P, as these did not expressly recognize the right to privacy.

In the Puttuswamy case, the right to privacy was reinforced by the concurring opinions of the judges in this case which recognized that this right includes autonomy over personal decisions, bodily integrity as well as the protection of personal information.

The concurring judgments included specific implications of this right, some of which are illustrated below:

Chandrachud (on behalf of himself, C.J. Kehar, J. Agrawal and J. Nazeer) stated “this opinion stated that privacy was not surrendered entirely when an individual is in the public sphere. Further, it found that the right to privacy included the negative right against State interference, as in the case of criminalization of homosexuality, as well as the positive right to be protected by the State. On this basis, the Judges held that there was a need to introduce a data protection regime in India.”

Chelameswar concurring opinion was “The right to privacy implied a right to refuse medical treatment, a right against forced feeding, the right to consume beef and the right to display symbols of religion in one’s personal appearance etc.”

Bobde observed “consent was essential for distribution of inherently personal data such as health records.”

Sapre said, “in addition to its existence as an independent right, the right to privacy included an individual’s rights to freedom of expression and movement and was essential to satisfy the constitutional aims of liberty and fraternity which ensured the dignity of the individual.”

Justice Nariman in his concurring opinion classified the facets of privacy into non-interference with the individual body, protection of personal information and autonomy over personal choices. Justice Kaul debated over the right to privacy with respect to protection of informational privacy and the right to preserve personal reputation. He said that the law must provide for data protection and regulate national security exceptions that allow for interception of data by the State.

However, the court even recognised that that the right to privacy was not an absolute right but has restriction to it which is provided by law, corelate with the legitimate aim of the State and was proportionate to the objective it sought to achieve.

 

Conclusion:

The Aadhaar Scheme was launched with the main agenda of giving identity and empowerment to the marginalized section of the society. It provides a unique identification number to the citizens of India. The Aadhaar number is unique and therefore, it can’t be duplicated. The unique identification ensures that the benefits and subsidies of the government are availed by the section of society for which they are meant.

The main issue of “Right to Privacy” was raised in the case. The question of dignity of citizens, informational self-determination and consent formed the basis for the privacy rights claims. The right to privacy formed an important part of the case as a result of which it is also known as the right to privacy judgment. As the Constitutional bench of the Hon’ble Supreme Court on 26th September 2018, gave the judgment in favor of respondents making right to privacy as a fundamental right of the citizen. The validity of Aadhaar was upheld by the Court after striking down various clauses and Sections of the Act which were contrary to the Constitution and violated the rights of the citizens. Justice A K Sikri wrote in his judgment declared the Aadhaar Act to be valid after striking down Section 33(2) and Section 57 of the Act. The petitioner raised various issues like the Right to Privacy of the citizens and the possibility of state surveillance as well as the possibility of breach of information which was collected by the Government for Aadhaar cards of the citizens. The questions of the petitioners have mitigated the claim of UIDAI that their system is one of the best in the world and secured enough to keep the information of the citizens safe. The Court held the Aadhaar Act to be Constitutionally valid as the Act was under reasonable restrictions of the Constitution. The majority of the honorable Bench also stated that the right of choice of the citizens to avail the Aadhaar card will not be protected by upholding the Aadhaar Act. The citizens will not be left with a choice as Aadhaar will be mandatory for availing the subsidies and benefits of the Government and if a citizen is excluded from availing the subsidies and benefits of the Government due to lack of Aadhaar or authentication problem it can result in the violation of the dignity of the citizen. The Bench the court even mentioned that linking of Aadhaar to PAN card is not important as there isn’t any constitutional rationale behind it. Upholding of Aadhaar can possibly result in the violation of the Right to Privacy even after striking down Section 33(2) and Section 57 of the Act. The court clearly stated to remove all the possibility for private entities to use the authentication mechanism or for asking Aadhaar details by the citizens in order to protect the Right to Privacy of the citizens. The step taken by the Court was to protect the Right to Privacy of the citizens and it clearly showed that the Right to Privacy is indeed a Fundamental Right.

“The states should provide ration to sex workers without insisting on ID proof”- Supreme Court

The Supreme Court on 29th September on hearing an application filed by NGO Durbar Mahila Samanwaya Committee, directed the state governments to ensure that dry ration is provided to sex workers even without identification proof. The plea was filed to emphasize the poverty faced by the sex workers on the account of COVID-19. The application seeks relief measures for over nine lakh female and transgender sex workers across the country.

The 2-Judge Bench consisting of Justices L. Nageswara Rao and Ajay Rastogi has directed that sex workers who are identified by the National AIDS Control Organisation (NACO) and state committees be given this benefit.

In the previous judgment, the Court held that sex workers have a right to live with dignity. A committee was made following it to study the various laws and to conduct a study relating to the conditions of sex workers. One of the terms of reference was the rehabilitation of sex workers.

RS Suri the Additional Solicitor General submitted that the Centre does not have objection if the states provide amenities without insisting on identity proof. Counsel for Maharashtra, Karnataka and West Bengal submitted that they have already initiated steps to provide dry ration without insisting on Voter ID etc. Other states informed the Court that there is no scheme for providing dry ration without proof of identity, though there are other schemes to provide basic goods.

Amicus Curiae in the matter, Senior Advocate Jayant Bhushan, submitted that the existence of schemes under which sex workers can be provided the amenities sought for in this application was not clear.

Advocate Piyush Roy, another Amicus Curiae in the case, submitted that sex workers should be permitted to open bank accounts without proof of identity. This would enable them to obtain any financial benefits sent by the Centre or the states, he said.

The advocate of the petitioner, Anand Grover said that there is a huge gap in the identification of sex workers.

The Court finally directed that the states should provide ration to sex workers without insisting on ID proof.

“Debar persons against whom serious offences have been framed from contesting elections”-plea in Supreme Court

Advocate Ashwani Kumar Upadhyay, filled a plea in the Supreme Court to debar persons against whom serious offences have been framed from contesting elections by directing the Centre and Election Commission seeking a writ, in the nature of mandamus.

The plea gives attention to the various reforms recommended by the Committees over the years such as recommendations made by the Jaya Prakash Narayan Committee in 1974, Goswami Committee in 1990 & Vohra Committee in 1993 but the states failed to implement the suggestions given by these committees.

In the plea it is stated that “On 24.02.2014, the Law Commission submitted its 244th report on decriminalization of politics, but Centre still did nothing. On 12.03.2015, the Law Commission submitted its 255th report on Electoral Reform, but Centre took no steps to implement them. On 05.12.2016, Election Commission again suggested steps for electoral & democratic reform, but Centre did not implement them.”

 

The petitioner stated that out of 539 winners in the 17th Lok Sabha Elections in 2019, 43% declared criminal cases against themselves.

The petitioner stated that the injury caused to people is large because criminalization of politics is at an extreme level. “Political parties are still setting-up candidates with serious criminal records. Therefore, voters find it difficult to cast their vote freely and fairly, though it is their fundamental right, guaranteed under Article 19,” the petitioner added. “The consequences of permitting criminals to contest elections and become legislators are extremely serious for our democracy and secularism,” the plea reads.

Depending upon the above, it is asserted that when 43% of MP’s in the Lok Sabha have criminal cases pending against them, then it would not come as a surprise that a Parliamentary Standing Committee in 2007 itself simply rejected the recommendation of the Law Commission in its 170th Report and the Election Commission’s “Proposal for Electoral Reforms” to bring changes in the Representation of the People Act, to impose an electoral disqualification on persons against whom charges have been framed for serious offences punishable by sentences of 5 years or more

 

Source: https://www.livelaw.in/top-stories/debar-chargesheeted-persons-involved-in-serious-offences-from-contesting-elections-plea-in-sc-163596?infinitescroll=1

Absence of motive in a case depending on circumstantial evidence is a factor that favors the accused: Supreme Court

The Supreme Court said “Absence of motive in a case depending on circumstantial evidence is a factor that weighs in favor of the accused,”

The 3-judge bench comprising of Justices Ashok Bhushan, R. Subhash Reddy and MR Shah reinstate the acquittal of two accused Anwar Ali and Sharif Mohammad, by wiping out the conviction recorded by the Himachal Pradesh High Court. They were accused for the murder of Deepak.  One of the main arguments raised from the side of the accused in the appeal before High Court was that the prosecution has failed to establish and prove the motive and therefore the accused deserves acquittal. In this regard, the bench observed:

“It is true that the absence of proving the motive cannot be a ground to reject the prosecution case. It is also true and as held by this Court in the case of Suresh Chandra Bahri v. State of Bihar 1995 Supp (1) SCC 80 that if motive is proved that would supply a link in the chain of circumstantial evidence but the absence thereof cannot be a ground to reject the prosecution case. However, at the same time, as observed by this Court in the case of Babu (supra), absence of motive in a case depending on circumstantial evidence is a factor that weighs in favour of the accused.”

Supreme Court- Plea for Equal Protection for transgender against sexual crimes.

A petition has been filed in the Supreme Court seeking equal protection of laws to the transgender community from sexual crimes in context of the Indian Penal Code. The plea mainly says that there is no provision or section in the IPC for protection of the transgender from sexual assault either by males or females or from other transgender. The plea is filed by lawyer Reepak Kansal who is seeking the court to direct the Union government to make laws to prevent sexual harassment of transgender.

He stated “In cases of sexual assault of transgender, the law enforcement agencies are often at loss to ascertain applicable provisions of law as there is no provision in Indian Penal Code.” “In spite of declaring transgender people to be a ‘third gender’ by this court, there is no provisions/sections in the IPC which may protect the transgender from the sexual assault by male/ female or another transgender,” it said.

He in his petition stated that clauses (i), (ii) and (iv) of sub-section (1) of Section 354A of IPC does not include the transgender victims of sexual harassment, the plea is seeking to challenge the provision as it being ultra vires Fundamental Rights (Articles 14, 15 and 21) provided by the Constitution of India. The petition is seeking to make changes in the sections of IPC, dealing with sexual assault to include transgender.  He said Section 354 A of IPC should be declared as ultra vires of Articles 14, 15 and 21 of the Constitution to the extent that they are interpreted to exclude victims of sexual harassment who are transgenders. The petitioner cited National Legal Services Authority vs Union of India granting recognition to the transgenders as ‘people’, falling under the ambit of Article 14 of the Constitution. The plea seeks the court to direct the Union government to pass an Anti-Discrimination Bill that penalizes discrimination and harassment based on gender.

 

Sources: https://www.livelaw.in/top-stories/plea-in-sc-seeks-equal-protection-for-transgenders-against-sexual-crimes-163538?infinitescroll=1

Supreme Court dismisses the plea to stop spreading of Covid-19 information based on religious grounds

The Supreme Court on 25th September set aside a plea seeking directions to the authorities concerned to prohibit and stop spreading of information in regards of novel Covid-19 on the basis of religion, caste, community and religious identity. The plea was filled by Advocate Md. Irshad Hanif on behalf of   M. Qayam Ud Din and Fozia Rahman who also also sought directions to the authorities to identify persons, organisations, websites and media houses who have either authored, shared and aided in circulation of such information.

A 3-judge bench comprising of Justices Ashok Bhushan, R Subhash Reddy & MR Shah set aside the plea in which the petitioner stated that the instant petition was all about right to dignity and honour.

Th plea sought directions for the authorities to immediately block any websites and remove the offending materials on the internet and take action under the Information Technology Act against those who are spreading communal hatred, creating problem for public order.

The plea resorted to the Tablighi Jamaat congregation here in March this year where minimum 9,000 people participated made national headline because it was claimed that the gathering became the primary source for spread of COVID-19 in India as many of the members had travelled to various parts of the country for missionary works and certain section of media, instead of exercising restraint, reported it with “communal colour”.

The plea had also claimed that were various fake videos and news that were circulated on different social media platforms which resulted in condemnation of the Muslim community.

The plea mentioned that “Arvind Kejriwal in the capacity of chief minister of Delhi supported such reporting by the medium of his tweets and other modes by naming affected cases deliberately as a separate caption ”Masjid Markaz”.

 

Source: https://www.financialexpress.com/india-news/covid-19-sc-dismisses-plea-for-direction-to-authorities-not-to-identify-persons-based-on-religion/2091620/