Smsj bench /Who is a Goonda? That is the important aspect that the State needs to seriously thing about. Can this court allow you to invoke the Act so casually
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Madras High Court asks State to introspect casual use of preventive detention law
A Bench of Justices SM Subramaniam and V Sivagnanam said it was high time the State gave a thought to who can be booked under its 1982 preventive detention law.
Preventive Detention
Published on:
16 Aug 2024, 4:23 pm
2 min read
The Madras High Court on Friday took exception to the State’s indiscriminate and casual use of preventive detention law against citizens.
A Bench of Justices SM Subramaniam and V Sivagnanam said that the State has to give a serious thought to the issue and take a step back to consider who can be termed a ‘Goonda’ under the Tamil Nadu Prevention of Dangerous Activities of Bootleggers, Drug Offenders, Goondas, Immoral Traffic Offenders, Forest Offenders, Sand Offenders, Slum-Grabbers and Video Pirates Act, 1982 (Goondas Act).
“Who is a Goonda? That is the important aspect that the State needs to seriously thing about. Can this court allow you to invoke the Act so casually? We are just reminding you that the Supreme Court has made it clear that illegal detention of a citizen by even one day is illegal. There is a report by the Supreme Court that says that Madras High Court is not passing timely orders in preventive detention matters. We want to bring it to your notice. How can you invoke the Goondas Act in cases of individual offences like these?” the bench said.
Justice SM Subramaniam and Justice V Sivagnanam
The Court further said that according to a published report by the Supreme Court, it takes an average detenue under the preventive detention law, a minimum of 181 days to get relief from the high court.
The Court made the observations while hearing a petition filed by one C Selvaraj seeking quashing of a preventive detention order issued against him by the State authorities in relation to a financial fraud case.
It noted that that present case involved use of bogus bank accounts and salary certificates to secure major loans from a bank. However, the authorities had booked Selvaraj, an accused in the case, under the Goondas Act.
Assistant Public Prosecutor (APP) E Raj Thilak told the Court that bogus bank accounts had opened with the aid of the detenue and false salary certificates had been issued based on which loans were sanctioned. 60 credit cards worth ₹38 lakh and personal loans worth ₹3 crore were availed by 59 customers with fake salary slips. All of this had been facilitated by the detenue, the APP told the Court.
The preventive detention order had been deemed necessary to prevent him from causing any further cases of fraud, the State said.
The High Court however, said that these were all “individual related offences” and therefore, the police had to conduct an investigation to recover the amount misappropriated.
“The nature of the allegations here in our opinion may not strictly fall under the requirements for invoking the preventive detention Act of 1982. There is no element of breach of public order. Individual offences of bank transactions can’t be brought under this Act. Therefore, we are not inclined to approve the preventive detention order,” the Court said while quashing such detention order and allowing the petitioner’s plea.
Actress moves Kerala High Court over release of report on women’s working conditions in film industry
Actress Sasha Selvaraj, popularly known as Ranjini, has questioned the decision to publish the Justice Hema Commission Report without hearing those affected, on concerns that it may infringe the right to privacy.
Kerala High Court, Justice Hema Committee Report
Published on:
17 Aug 2024, 4:23 pm
2 min read
Actress Sasha Selvaraj, popularly known as Ranjini, has challenged a recent order by a single judge of the Kerala High Court to allow the publication of Justice Hema Committee Report on working conditions of women in the Malayalam film industry [Sasha Selvaraj @ Renjini v State of Kerala and ors].
In her appeal, Ranjini submitted that she is not opposed to the publication of the report as such. However, she has raised concerns that her right to privacy may be infringed if sensitive portions of the report have not been properly redacted.
A Division Bench of Acting Chief Justice A Muhamed Mustaque and Justice S Manu on Friday (August 16) admitted her appeal and listed the case for hearing on Monday (August 19).
Justice A Muhamed Mustaque and Justice S Manu
The Justice K Hema Committee was established by the Kerala government in 2017 following a petition by the ‘Women in Cinema Collective’ to study the issues faced by women in the film industry.
Actress Ranjini was among those who gave a statement to the committee as part of this study. In her plea, she highlighted that she had given her statement on assurances that confidentiality would be maintained.
She submitted that she had a legitimate expectation that she would be notified and heard before any part of the report that concerns her statements would be released.
The committee submitted its report to the government in 2019.
The State Information Commission (SIC) later allowed a plea to publicly release portions of the report after redacting personal information.
This move was challenged by film producer Sajimon Parayil before the Kerala High Court. However, on August 13, Justice VG Arun (single judge of the High Court) dismissed the petition,
This order has now been challenged by Ranjini, who raised concern that her right to privacy may be violated with the report’s release since the task of redacting sensitive portions of the report was left solely to the discretion of an Information Officer.
She has submitted that those affected by the report’s release have been kept in the dark about which portions would be redacted prior to the report’s publication.
“The State Information Commissioner ought not have directed the publication of the report without the affected parties including the appellant being heard,” the appeal said.
She added that when the right to information under Article 19(1)(a) of the Constitution conflicts with the right to privacy under Article 21, the latter should take precedence due to the reasonable restrictions on the freedom of speech and expression.
The Government Pleader (who represented the Kerala government and the SIC) on Friday objected to maintainability of the appeal on the ground that Ranjini was not a party to the petition before the single judge.
However, the Court overruled these objections and decided to hear the matter on Monday.
Advocates Renjith B Marar, Lakshmi N Kaimal, P Rajkumar, Keshavraj Nair, Arun Poomulli, Anand Ramesh, Abhiram S, Abhijith Sreekumar and Gaadha Suresh appeared for Ranjini.
[Read Order]
Attachment
Sasha_Selvaraj___Renjini_v_State_of_Kerala_and_ors (1).pdf
Justice K Hema Committee Report
Minority institutions cannot admit students under RTE quota: Bombay High Court
The Court ruled that even voluntary admissions under RTE Act would violate constitutional protections guaranteed to the minority institutions.
Aurangabad Bench, Bombay High Court
Published on:
17 Aug 2024, 3:30 pm
2 min read
The Bombay High Court’s Aurangabad bench recently held that minority educational institutions cannot admit students under the Right of Children to Free and Compulsory Education Act, 2009 (RTE Act)’s 25% quota for economically and socially disadvantaged children, even if they choose to do so voluntarily [Izak English Medium School and Anr v. State of Maharashtra].
The Court emphasised that allowing such admissions would contravene the constitutional protections that exempt minority institutions from the RTE Act’s mandate.
The case involved Izak English Medium School in Ahmednagar and Anand Medical and Education Foundation, both of which operate minority-run English-medium schools.
These institutions challenged a government directive linked to a circular issued on March 15, 2013, which specifically excluded minority schools from the RTE Act’s 25% quota. The schools argued that they should be permitted to admit students under the RTE quota as a voluntary gesture, while also seeking reimbursement for students admitted under the quota in previous years.
However, the Court rejected these arguments, stating that minority institutions cannot opt into the RTE quota without violating their constitutional rights.
In their judgment, Justices Mangesh S Patil and Shailesh P Brahme noted,
“Once the constitutional bench of the Supreme Court has held the RTE Act itself being ultra vires Article 30(1) of the Constitution, this Court in exercise of the powers under Article 226 of the Constitution cannot permit the minority institutes like the petitioners to subject themselves to the provisions of the RTE Act. Even if they [minority institutions] are ready and willing [to admit students under the RTE quota], allowing them to do so could be only by making the provisions of the RTE Act applicable to them, which in itself is prohibited by virtue of the declaration in Pramati Educational and Cultural Trust (supra).”
Justice Mangesh S Patil and Justice Shailesh P Brahme
The Court’s ruling was based on Section 1(5) of the RTE Act which explicitly exempts minority institutions from its applicability.
The Bench also referred to the Supreme Court’s ruling in the Pramati Educational and Cultural Trust case, which declared that applying the RTE Act to minority institutions would be “ultra vires” Article 30(1) of the Constitution, which guarantees the rights of minorities to establish and administer educational institutions of their choice.
The petitioners further challenged the validity of certain provisions of the RTE Act and the 2011 Rules framed under it, arguing that these violated their constitutional rights under Articles 14, 19(1), and 30. However, the Court dismissed these claims, asserting that the petitioners could not contest the validity of the RTE Act or the Rules.
While dismissing the petitions, the Court acknowledged that Izak English Medium School had previously admitted students under the RTE quota and had not been reimbursed for the academic years 2017-18 to 2019-20. The Court directed the government to “undertake scrutiny of the claim” and reimburse the school within six weeks.
Advocates GR Syed and AB Gatne appeared for the schools.
Additional Government Pleader AR Kale and advocate AD Aghav represented the State.
[Read Judgment]
Attachment
Izak English Medium School and anr v, State of Maharashtra.pdf
Woman cannot be booked for sexual harassment of another woman under Section 354A IPC: Kerala High Court
The Court observed that the offence of sexual harassment under Section 354A of the Indian Penal Code (IPC) specifically referred to “a man,” thereby excluding women from being prosecuted under this section.
Kerala High Court
Published on:
17 Aug 2024, 2:37 pm
3 min read
The Kerala High Court recently observed that a woman cannot be booked for the offence of sexual harassment under Section 354A of the Indian Penal Code (IPC), even if the offence is alleged to have been committed against another woman.
Justice A Badharudeen made the observation while partially quashing criminal proceedings initiated by a woman against her in-laws in a marital cruelty case.
The case included allegations that the complainant had been sexually harassed by her sister-in-law. However, the High Court noted that Section 354A of the IPC, which punishes sexual harassment, applies only to acts committed by men.
“In order to attract offence under Section 354A of IPC, the overt acts dealt under Section 354A(1), (2) and (3), should be the volition of ‘a man.’ So the legislature diligently used the term `a man’ instead of `any person’ In the statutory provision and the legislative intent is to exclude woman/women from the purview of Section 354A of IPC. If so, it has to be held that Section 354A of IPC would not apply when the overt acts dealt therein was done by a woman against another woman/ women,” the Court held.
Justice A Badharudeen
The Court was dealing with a plea to quash a marital cruelty initiated against the mother-in-law and sister-in-law (among other accused) of a woman.
The complainant-woman had alleged that she had been mistreated by her husband, his parents and his sister.
She alleged that she was subjected to cruelty by the accused in connection with demands for money and property and was even was detained in a room and starved.
She accused her mother-in-law of attempting to harm her by tampering with the gas stove and obstructing her studies, and her sister-in-law of coercing her into improper sexual activities through threats.
Criminal proceedings were initiated against the accused (husband and in-laws) under Sections 498A (husband or relative subjecting a woman to cruelty), 354A (sexual harassment), and 34 (acts done by several persons in furtherance of common intention) of the IPC.
The woman’s mother-in-law and sister-in-law (petitioners) later moved the High Court to quash the criminal charges against them.
The petitioners’ counsel argued that there were no specific allegations against them to substantiate the marital cruelty charges and added that that women could not be held liable under Section 354A, IPC.
The Public Prosecutor countered that the complainant was subjected to domestic violence and molestation by the accused in connection with demands for money and property, which prima facie established the commission of the alleged offences.
The Court found that there were specific allegations against the petitioners that prima facie warranted a trial for the offence under Section 498A (cruelty to married woman) of the IPC. Therefore, it refused to quash the Section 498A case and allowed the trial to continue with respect to this offence.
However, the Court quashed the sexual harassment charges since Section 354A IPC cannot be invoked against women and, therefore, could not be invoked against the petitioners.
A similar ruling was recently passed by the Calcutta High Court, which had observed that, “a female cannot be an accused under Section 354A of the IPC as is evident from very terminology as used in the said enactment.”
The petitioners were represented by advocates V Arun, V Jaya Ragi, R Harikrishnan (Kambisseril), Neeraj Narayan, and Avaneeth SR.
Public Prosecutor MP Prasanth appeared for the State.
[Read Order]
Attachment
Kerala HC Order.pdf
Human greed, Wayanad disaster, climate change: What Justice BR Gavai said in Kerala
Justice Gavai in his address paid homage to the lives lost during the recent Wayanad tragedy.
Justice BR Gavai
Published on:
17 Aug 2024, 1:29 pm
4 min read
Supreme Court judge Justice BR Gavai on Saturday stressed upon the need to have sustainable development instead of mindless destruction of environment.
He said that human greed should not cross a limit that we cease to care for the future generations.
In this regard, he highlighted the recent tragedy in Kerala’s Wayanad where over 230 died during in landslides at Mundakkai.
“Today’s conference and particularly the location where it is being held – Kerala is known to be the God’s own country, it is such a beautiful country – particularly in the backdrop of what is a result of a human greed which has been noticed in the recent past about 100 KMs away from here, holding of such a conference on the sustainable transport, tourism and technological Innovations is very important,” he said.
Justice Gavai was speaking at Commonwealth Legal Education Association (CLEA)’s International Conference on ‘Law and Technology: Sustainable Transport, Tourism and Technological Innovations’ in Kerala’s Kumarakom.
“We have seen that on account of conflict between the development and environmental concerns, in the last decade we have suffered many tragedies,” the Supreme Court judge said.
While Justice Gavai emphasised that development is necessary for progress, he also said that all the three wings, legislature, executive and the judiciary, have to work together to balance development with environment.
“No doubt that development is necessary for progress but it cannot be at the cost of the environment. Man has always been said to be greedy but the greed should not go beyond limits where there is no concern for future generations. Therefore, the concept of sustainable development over the last couple of decades has taken importance,” he added.
The top court judge also said that while Constitution requires the State to protect the environment, the citizens also have a fundamental duty to protect the nature.
Justice Gavai also spoke on how environmental jurisprudence has developed in India in the past few decades and referred to the Supreme Court’s orders of 1990s regarding public transport in Delhi.
“Taking note of pollution causing buses in Delhi, in one of the first MC Mehta case, the Supreme Court issued directions to remove such buses and the pollution from buses in Delhi has reduced substantially,” he said.
Speaking regarding his personal experience heading the Green Bench at top court, Justice Gavai said,
“On one hand we have demands of State governments to permit dams to produce electricity but on the other hand there are environmental concerns that it would threaten already fragile ecosystems.”
Justice Gavai in his address also commented on Artificial Intelligence, eco-tourism and man-animal conflict.
“Artificial Intelligence certainly plays an important role but it cannot be a substitute for the human mind. Conflicts with man and the wild have also to be taken into consideration when looking at the tourism, eco-tourism. Eco-tourism is an important aspect because in order to protect the environment, the important stakeholder is the resident of the area. Unless he gets a livelihood of environment, tiger reserve, he would have no interest in protecting the environment… these are all complex issues.”
The judge said that the adverse effects of climate change need to be examined seriously.
“It has been said development is necessary but as has been [also] said anything else you are interested in can’t happen, if you can’t breathe the air and drink the water. Don’t sit this time, do something. You are by accident of it alive at an absolutely critical moment in the history of our planet. The challenges of climate change are being noticed world wide. The adverse effects are one of the aspect which need to be looked into seriously”
Justice BR Gavai and Justice Surya Kant at the conference
Justice Surya Kant, who was also present at the event, said there was a need to enact new laws to address issues related to sustainable tourism development and transport.
“We need new legislation to address emerging issues,” the top court judge said.
The legal framework should not only ensure economic growth but also address environmental protection and social equity, he underscored.
Kerala High Court Acting Chief Justice A Muhamed Mustaque also spoke on the occasion and said Wayanad landslides were a grim reminder that development must be sustainable.
Sustainable development cannot be treated as a mere buzzword, he remarked.
“I must thank the organisers for choosing Kumarakom to hold this conference which is a very apt location. The landslides in Wayanad will remain a grim reminder for all of us as we discuss the topic today,” Justice Mustaque said.
Attorney General for India R Venkataramani said that to express solidarity with lives lost in Wayanad, a donation will be made to the Chief Minister’s Disaster Relief Fund.
“We are all gathered here as global citizens. We first thought of keeping AI as the topic but we, the organisers, thought we should keep something more important and real as the topic for this conference,” he said.
Solicitor General of India Tushar Mehta also expressed solidarity with those who died in the natural disaster.
“The incident is a reminder to all of us of what happens when we tinker with the environment, climate and nature. The subject today is very apt,” he said.
Mehta also spoke about public transport and judiciary’s role in aiding the State in implementing innovative measures towards environmental protection.
“We need a better system of public transport… In some countries there are days which have vehicular curfews. But such measures will require collaboration with executive, legislature and judiciary. But will the legislature be able to introduce something experimental and innovative? Even if it is implemented, it will be challenged before the courts maybe on new grounds like right to privacy, autonomy, freedom of movement. These are the challenges with which judiciary will have to grapple. All of us have to collaborate to ensure we leave this earth a better place for coming generations,” he opined.
Commonwealth Legal Education Association
Dhruv Rathee tells Delhi court that BJP leader suing him hid facts, has a history of using abusive language
BJP leader Suresh Nakhua has sued Dhruv Rathee for defamation. Delhi’s Saket Court is set to hear an interim injunction plea to restrain Rathee from uploading posts against Nakhua on August 27.
Dhruv Rathee
Published on:
17 Aug 2024, 1:27 pm
2 min read
YouTuber Dhruv Rathee has told a Delhi court that the Suresh Nakhua, the Bharatiya Janata Party (BJP) leader who is suing Rathee for defamation, has a history of abusing public figures and is playing fraud on the court to get a favourable order.
The BJP leader has sued Rathee for defamation over a video titled “My Reply to Godi Youtubers | Elvish Yadav | Dhruv Rathee.”
In a reply filed before the court through Advocate Nakul Gandhi, Rathee referred to certain tweets where Nakhua allegedly used foul language against people like Sonia Gandhi, Barkha Dutt, Suhel Seth, and others.
The YouTuber added that Nakhua deliberately concealed the fact when he (Rathee) referred to Nakhua as a “hinsak gaalibaaz” (abusive troll), a reference was also made to one of Nakhua’s tweets.
“…the Plaintiff [Nakhua] has deliberately concealed the visual representations of the alleged defamatory portion in the impugned video from the knowledge of this Hon’ble Court. It is further submitted that visual representations of the impugned video hold crucial importance in determining the veracity of the allegations levied by the Plaintiff. However, Plaintiff deliberately, with conscious mind, refrained from bringing the visual representation of the alleged defamatory portion of the impugned video from the knowledge of this Hon’ble Court with the sole intention to mislead and obtain favourable order. Moreover, in order to show false urgency and injury, the Plaintiff has sought ex-parte ad interim relief,” Rathee’s reply stated.
Nakhua’s post, which Rathee referred to in the video, read, “@gsurya U ass***** bit** Did I abuse u? U confirmed tht u r product of a rape i.e. Balatkar ki paidaish.”
Delhi court summons Dhruv Rathee in defamation case by BJP leader
Rathee has made the submission in his response to a plea for an interim injunction against him in the defamation suit filed by Nakhua.
Nakhua has objected to Rathee referring to him (Nakhua) as a “violent and abusive” troll. Nakhua has argued that such comments tend to bring down his reputation.
He has sought an order to restrain Rathree from tweeting, creating, or publishing any content that is derogatory or harmful to him.
The court had issued summons to Rathee on July 19.
Rathee countered the allegations, stating that Nakhua is “a person who instigates random public figures on public domain by way of abusing them.”
He further contended that if Nakhua’s prayer is granted, it will amount to a “super injunction/ blanket injunction/ gag order” which is impermissible in the eyes of the law.
The defamation case was listed for hearing on August 16 before the court. However, because the judge was on leave, it will now be heard on August 27.
Dhruv Rathee is represented by advocate Nakul Gandhi of NG Law Chambers.
Advocates Raghav Awasthi and Mukesh Sharma represented Suresh Nakhua.
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