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Covid-19: SC worried about worsening pandemic situation

The court noted that the infection rate in Delhi, Gujarat, Maharashtra and Assam is getting out of control and sought status reports within two days

23 Nov 2020

SC on Covid

A three-judge Bench of Justices Ashok Bhushan, MR Shah and Subhash Reddy have expressed their concern over the alarming rate of Covid 19 cases particularly in the States of Delhi and Gujarat. (In Re: The Proper Treatment of Covid 19 Patients and Dignified Handling Of Dead Bodies In The Hospitals Etc. W.P Civ. No. 07 of 2020).

The Solicitor-General of India, Tushar Mehta represented the Central government and Senior Advocate Sanjay Jain represented the NCT of Delhi.

The Bench directed the Governments of Delhi, Gujarat, Maharashtra and Assam to file status reports detailing the steps taken by them to manage the crisis. “All states have to be prepared to combat the situation of Covid19 which is likely to worsen and immediate steps required by all states. Status report be filed within two days. List on Friday”, said the Bench, reported LiveLaw.

Justice MR Shah asked the Counsel for Gujarat, “What is happening in the State of Gujarat? What is the policy decision? What is happening in your state? What steps are you taking with respect to political events etc?” Justice Shah also slammed the State of Gujarat with regard to the permissions granted for performance of marriage ceremonies and processions in the state. The Gujarat said that a status report would be placed before the top court immediately, as reported by Bar and Bench.

“Things have worsened in the last two weeks in Delhi. We need a status report to understand bottle necks if any with regard to COVID patient’s management”, Justice Bhushan remarked to the ASG representing the Delhi Government. The ASG informed the court that a compliance affidavit had been filed before the apex court by the AAP government on July 22, 2020 adhering to its earlier directions.

Further, the ASG, Sanjay Jain submitted that with the rise in demand for beds in private hospitals, all 115 private hospitals have 80 percent beds reserved for COVID patients as compared to the earlier notification which had only 33 such hospitals under the reservation ambit. Dedicated slots for cremation of 380 Covid patients attached to hospitals area wise, is also in place.

The Union’s submission started with SG Tushar Mehta expressing grief over the situation saying, “This is unfortunate for humanity that you have to deal with this. That dead body becomes a subject of this court.” To this, Justice Ashok Bhushan said, “Yes, but it has to be taken account of.”

Moving ahead, the SG said, “I understand this is not Us Vs. Them, it’s Us together but I want to tell the Court that on November 15, the Union Minister has taken some decisions and directions have been issued but Delhi needs to do more.”

The court concluded the hearing by observing, “Solicitor-General submits that Union Home Minister has taken steps to improve the situation in Delhi. He will file an affidavit regarding the status of COVID cases in the country, especially Delhi.”

The matter will now be heard on Friday, this week.

Related:

Delhi High Court takes Kejriwal govt to task

Covid-19 spike: Delhi records over 8,593 Coronavirus cases in 24 hrs!

Arvind Kejriwal faces the heat as Delhi braces for another Covid-19 surge

NHRC issues advisories to assess Covid-19 pandemic impact

Covid-19: SC worried about worsening pandemic situation

The court noted that the infection rate in Delhi, Gujarat, Maharashtra and Assam is getting out of control and sought status reports within two days

SC on Covid

A three-judge Bench of Justices Ashok Bhushan, MR Shah and Subhash Reddy have expressed their concern over the alarming rate of Covid 19 cases particularly in the States of Delhi and Gujarat. (In Re: The Proper Treatment of Covid 19 Patients and Dignified Handling Of Dead Bodies In The Hospitals Etc. W.P Civ. No. 07 of 2020).

The Solicitor-General of India, Tushar Mehta represented the Central government and Senior Advocate Sanjay Jain represented the NCT of Delhi.

The Bench directed the Governments of Delhi, Gujarat, Maharashtra and Assam to file status reports detailing the steps taken by them to manage the crisis. “All states have to be prepared to combat the situation of Covid19 which is likely to worsen and immediate steps required by all states. Status report be filed within two days. List on Friday”, said the Bench, reported LiveLaw.

Justice MR Shah asked the Counsel for Gujarat, “What is happening in the State of Gujarat? What is the policy decision? What is happening in your state? What steps are you taking with respect to political events etc?” Justice Shah also slammed the State of Gujarat with regard to the permissions granted for performance of marriage ceremonies and processions in the state. The Gujarat said that a status report would be placed before the top court immediately, as reported by Bar and Bench.

“Things have worsened in the last two weeks in Delhi. We need a status report to understand bottle necks if any with regard to COVID patient’s management”, Justice Bhushan remarked to the ASG representing the Delhi Government. The ASG informed the court that a compliance affidavit had been filed before the apex court by the AAP government on July 22, 2020 adhering to its earlier directions.

Further, the ASG, Sanjay Jain submitted that with the rise in demand for beds in private hospitals, all 115 private hospitals have 80 percent beds reserved for COVID patients as compared to the earlier notification which had only 33 such hospitals under the reservation ambit. Dedicated slots for cremation of 380 Covid patients attached to hospitals area wise, is also in place.

The Union’s submission started with SG Tushar Mehta expressing grief over the situation saying, “This is unfortunate for humanity that you have to deal with this. That dead body becomes a subject of this court.” To this, Justice Ashok Bhushan said, “Yes, but it has to be taken account of.”

Moving ahead, the SG said, “I understand this is not Us Vs. Them, it’s Us together but I want to tell the Court that on November 15, the Union Minister has taken some decisions and directions have been issued but Delhi needs to do more.”

The court concluded the hearing by observing, “Solicitor-General submits that Union Home Minister has taken steps to improve the situation in Delhi. He will file an affidavit regarding the status of COVID cases in the country, especially Delhi.”

The matter will now be heard on Friday, this week.

Related:

Delhi High Court takes Kejriwal govt to task

Covid-19 spike: Delhi records over 8,593 Coronavirus cases in 24 hrs!

Arvind Kejriwal faces the heat as Delhi braces for another Covid-19 surge

NHRC issues advisories to assess Covid-19 pandemic impact

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Disarray in Odisha over custodial violence cases

Odisha is burning over custodial torture cases in Puri, Birmitrapur and most recently, Pipili

23 Nov 2020

custodial deaths

The Odisha Police have come under sharp attack after alleged custodial torture and death cases in different parts of the state. In Puri, one K. Ramesh was allegedly hacked to death after being picked up by a Baseli Sahi Police personnel for some criminal charges against him. After an apparent scuffle with the Police, he was taken to a Hospital on November 19, where he was declared 'brought dead' by the doctors.

Having chilling similarities with the Hathras rape and murder case of a Dalit teen, The Wire reported that the deceased had injury marks on his body and much to his family’s dismay, the Police cremated his body at Swargadwara in the afternoon, in Puri without informing them.

Another victim identified as Tariq Salim, a resident of Birmitrapur town, was allegedly picked up by the Police and taken into different locations for investigation in connection with the kidnap of a businessman. The Indian Express reported that his health deteriorated when he was rushed to Rourkela Government Hospital (RGH) only to be declared dead, early morning on November 19.

Police claimed he ‘suddenly’ fell ill and the allegation of police excesses was untrue. Sources close to the deceased youth’s family told Indian Express that Tariq was picked up from Vedvyas area of Rourkela on Wednesday (November 18) and tortured.

Amid huge public outcry over the brutalisation of two youths, a new instance of police torture has come to light from Pipili. Six men were admitted to Cuttack’s SCB Medical College and Hospital on November 21 with several injury marks on their body.

Apprehended by the police at Pipili Police Station, the parents of all six accused have alleged that they were mercilessly beaten up by officers since November 13 and their staged dharna (protest) was joined by other Congress party members.  

Investigation underway

The Odisha High Court, in Sarat Kumar Rayaguru vs State of Odisha and Ors (W.P [C] No. 32058 of 2020) through its Division Bench comprising Chief Justice Mohammad Rafiq and Justice Biswanath Rath has taken cognisance of the atrocity against K. Ramesh.

According to the media, the Bench directed the State counsel Subir Palit to take instructions from the government and file an affidavit on the matter. A Puri-based lawyer Sarat Kumar Rayguru filed a public interest litigation seeking court-monitored investigation, immediate action against police officials involved in the unlawful incident and compensation to the family of the deceased. This matter is up for hearing today.

In addition to the Court, the National Human Rights Commission (NHRC) has also sought an action taken report from the State Chief Secretary and DGP within four weeks. This includes a detailed report covering all aspects leading to the death of the accused, time and place of occurrence as well as the reason for his arrest or detention, reported Outlook.

A press release has also been put out in the public domain by the Odisha Police in the Pipili torture case. It states, “An enquiry by Abhay, DIG of police, Central Range, Cuttack has been ordered into the allegations.”

The Mahila Congress State secretary Nirupama Patra has condemned the police excess and demanded action against the culprits along with BJP District President Arsit Patnaik who has demanded a thorough probe into the matter.

The BJP has moved the Odisha Human Rights Commission on the two deaths in Puri and Birmitrapur, while party national spokesperson Sambit Patra has also moved the National Human Rights Commission in the same regard.

Damage control

In order to rule the roost over the current situation, the media has reported on the Odisha State Government’s decision of asking Akhileshwar Singh, Superintendent of Police, Puri to report to State Police headquarters and sending Superintendent of Police of Sambalpur K. Vishal Singh to take charge of the Puri District.

After Tariq Salim’s demise early Thursday (November 20) morning, locals encircled the Police Station at Birmitrapur around 8:30 am, demanding suspension of police officers concerned and booking them on murder charges with compensation to the bereaved family.

DIG of Police (Western Range) Kabita Jalan and Sundargarh SP Sagarika Nath rushed to the police station to stop the situation from intensifying any further. In her brief reaction, the DIG said the meeting was underway with local community leaders and eminent persons to restore normalcy and take action against the erring police officers.

Congress legislature party leader Narasingha Mishra has accused the Naveen Patnaik Government of protecting their State actors and alleged, “It seems the Odisha government is following the modus operandi of Uttar Pradesh government”, as per The Telegraph reports.

Recent judicial precedent

SabrangIndia had reported on an Odisha High Court judgement where the Bench sentenced two cops in a custodial violence and death case on November 9. (Pravat Chandra Mohanty and Ors v State of Orissa, CRA No. 207/210 of 1988).

Justice S.K Sahoo had observed that, “Custodial violence on a person which may sometimes lead to his death is abhorrent and not acceptable in a civilised society and it is a crime against humanity and a clear violation of a person’s rights under Article 21 of the Constitution of India.”

“Police excesses and maltreatment of detainees, under trial prisoners or suspects tarnishes the image of any civilised nation. Stern measures are required to be taken to check the malady against those police officials who consider themselves to be above the law and bring disrepute to their department, otherwise the foundations of the criminal justice delivery system would be shaken and the common man may lose faith in the judiciary”, he added.

After witnessing such uproarious events in a month’s time, sterner action is expected to be taken to remedy such behavioural changes of police personnel acting in executive overreach.

Related:

Custodial death case: Orissa HC imposes sentence on ex cops

1700 custodial deaths in a year, yet no anti-torture law!

Kerala: Muslim youth accuse local police of custodial torture

 

Disarray in Odisha over custodial violence cases

Odisha is burning over custodial torture cases in Puri, Birmitrapur and most recently, Pipili

custodial deaths

The Odisha Police have come under sharp attack after alleged custodial torture and death cases in different parts of the state. In Puri, one K. Ramesh was allegedly hacked to death after being picked up by a Baseli Sahi Police personnel for some criminal charges against him. After an apparent scuffle with the Police, he was taken to a Hospital on November 19, where he was declared 'brought dead' by the doctors.

Having chilling similarities with the Hathras rape and murder case of a Dalit teen, The Wire reported that the deceased had injury marks on his body and much to his family’s dismay, the Police cremated his body at Swargadwara in the afternoon, in Puri without informing them.

Another victim identified as Tariq Salim, a resident of Birmitrapur town, was allegedly picked up by the Police and taken into different locations for investigation in connection with the kidnap of a businessman. The Indian Express reported that his health deteriorated when he was rushed to Rourkela Government Hospital (RGH) only to be declared dead, early morning on November 19.

Police claimed he ‘suddenly’ fell ill and the allegation of police excesses was untrue. Sources close to the deceased youth’s family told Indian Express that Tariq was picked up from Vedvyas area of Rourkela on Wednesday (November 18) and tortured.

Amid huge public outcry over the brutalisation of two youths, a new instance of police torture has come to light from Pipili. Six men were admitted to Cuttack’s SCB Medical College and Hospital on November 21 with several injury marks on their body.

Apprehended by the police at Pipili Police Station, the parents of all six accused have alleged that they were mercilessly beaten up by officers since November 13 and their staged dharna (protest) was joined by other Congress party members.  

Investigation underway

The Odisha High Court, in Sarat Kumar Rayaguru vs State of Odisha and Ors (W.P [C] No. 32058 of 2020) through its Division Bench comprising Chief Justice Mohammad Rafiq and Justice Biswanath Rath has taken cognisance of the atrocity against K. Ramesh.

According to the media, the Bench directed the State counsel Subir Palit to take instructions from the government and file an affidavit on the matter. A Puri-based lawyer Sarat Kumar Rayguru filed a public interest litigation seeking court-monitored investigation, immediate action against police officials involved in the unlawful incident and compensation to the family of the deceased. This matter is up for hearing today.

In addition to the Court, the National Human Rights Commission (NHRC) has also sought an action taken report from the State Chief Secretary and DGP within four weeks. This includes a detailed report covering all aspects leading to the death of the accused, time and place of occurrence as well as the reason for his arrest or detention, reported Outlook.

A press release has also been put out in the public domain by the Odisha Police in the Pipili torture case. It states, “An enquiry by Abhay, DIG of police, Central Range, Cuttack has been ordered into the allegations.”

The Mahila Congress State secretary Nirupama Patra has condemned the police excess and demanded action against the culprits along with BJP District President Arsit Patnaik who has demanded a thorough probe into the matter.

The BJP has moved the Odisha Human Rights Commission on the two deaths in Puri and Birmitrapur, while party national spokesperson Sambit Patra has also moved the National Human Rights Commission in the same regard.

Damage control

In order to rule the roost over the current situation, the media has reported on the Odisha State Government’s decision of asking Akhileshwar Singh, Superintendent of Police, Puri to report to State Police headquarters and sending Superintendent of Police of Sambalpur K. Vishal Singh to take charge of the Puri District.

After Tariq Salim’s demise early Thursday (November 20) morning, locals encircled the Police Station at Birmitrapur around 8:30 am, demanding suspension of police officers concerned and booking them on murder charges with compensation to the bereaved family.

DIG of Police (Western Range) Kabita Jalan and Sundargarh SP Sagarika Nath rushed to the police station to stop the situation from intensifying any further. In her brief reaction, the DIG said the meeting was underway with local community leaders and eminent persons to restore normalcy and take action against the erring police officers.

Congress legislature party leader Narasingha Mishra has accused the Naveen Patnaik Government of protecting their State actors and alleged, “It seems the Odisha government is following the modus operandi of Uttar Pradesh government”, as per The Telegraph reports.

Recent judicial precedent

SabrangIndia had reported on an Odisha High Court judgement where the Bench sentenced two cops in a custodial violence and death case on November 9. (Pravat Chandra Mohanty and Ors v State of Orissa, CRA No. 207/210 of 1988).

Justice S.K Sahoo had observed that, “Custodial violence on a person which may sometimes lead to his death is abhorrent and not acceptable in a civilised society and it is a crime against humanity and a clear violation of a person’s rights under Article 21 of the Constitution of India.”

“Police excesses and maltreatment of detainees, under trial prisoners or suspects tarnishes the image of any civilised nation. Stern measures are required to be taken to check the malady against those police officials who consider themselves to be above the law and bring disrepute to their department, otherwise the foundations of the criminal justice delivery system would be shaken and the common man may lose faith in the judiciary”, he added.

After witnessing such uproarious events in a month’s time, sterner action is expected to be taken to remedy such behavioural changes of police personnel acting in executive overreach.

Related:

Custodial death case: Orissa HC imposes sentence on ex cops

1700 custodial deaths in a year, yet no anti-torture law!

Kerala: Muslim youth accuse local police of custodial torture

 

Related Articles


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Another supplementary charge sheet against Umar Khalid!  

The 930-page chargesheet by the Delhi Police cites Khalid’s trip to Patna as part of ‘conspiracy’ leading to riots

23 Nov 2020

Umar Khalid

Delhi Police have filed yet another supplementary charge sheet against Dr. Umar Khalid in its ongoing investigations into the North East Delhi communal violence of February 2020. The Delhi Police's 930-page chargesheet cites Khalid’s trip to Patna as a part of a ‘conspiracy’, reports The Indian Express. The report cites sources saying that according to the Delhi Police, Umar Khalid left the city “during the visit of US President Donald Trump on February 23 for Patna and came back on February 27.” This has been  stated by the Delhi Police Special Cell in a supplementary chargesheet filed on Sunday before a Delhi court in connection with the Northeast Delhi riots reported IE. 

According to the report, this chargesheet names Khalid, JNU student Sharjeel Imam and one Faizan Khan, a ‘SIM card provider’ in a “conspiracy” case related to the riots. The charge sheet was filed before Additional Sessions Judge Amitabh Rawat against Khalid, Imam and Khan, who was on bail, under sections of the stringent Unlawful Activities (Prevention) Act (UAPA). All of them have also been accused of “rioting, unlawful assembly, criminal conspiracy, murder, promoting enmity on grounds of religion, language, caste, etc” and other sections of the IPC reported IE.

The 930-page chargesheet stated that as part of the conspiracy, Khalid left the city during the visit of US President Donald Trump on February 23 for Patna and came back on February 27. 

According to IE the police registered an FIR against Khalid on March 6 based on information provided by an informer to sub-inspector Arvind Kumar of the narcotics unit of the Crime Branch. According to the FIR, Kumar stated the informer told him that the Northeast Delhi riots in February were part of a “premeditated conspiracy” allegedly hatched by Khalid, one Danish, and two others associated with different organisations. That FIR states: “Khalid allegedly gave provocative speeches at two different places and appealed to the citizens to come out on the streets and block the roads during the visit of US President Donald Trump to spread propaganda at the international level about how minorities in India are being persecuted.”

Kumar has alleged in the FIR that as part of the conspiracy, ‘firearms, petrol bombs, acid bottles, and stones were stored at homes in Kardampuri, Jafrabad, Chand Bagh, Gokulpuri, Shiv Vihar and nearby areas’. Delhi Police in their charge sheet also alleged that suspended AAP councillor Tahir Hussain met with Khalid and Khalid Saifi of ‘United Against Hate’ at Shaheen Bagh, where they “hatched conspiracy for riots at the time of Trump’s visit.”

The man identified as Faizan Khan has been accused of providing and activating a SIM card, which was “used by the Jamia Coordination Committee, a group of students and activists which protested against the new citizenship law”. The IE reported that as per police, “the SIM card was activated on the demand of Jamia Millia Islamia student Asif Iqbal Tanha, who is also an accused in the case and it was issued on the basis of forged documents.” Umar Khalid was arrested in connection with the riots in Khajuri Khas on October 1, while he was in judicial custody in another case related to an alleged conspiracy in the violence.

 Recently, the Arvind Kejriwal led Delhi Government and the Union Ministry of Home Affairs, had sanctioned the Delhi Police to prosecute  Umar Khalid under the stringent anti-terror Unlawful Activities (Prevention) Act (UAPA) on Friday. A Delhi government officer had told the media that they had “given prosecution sanction in all the Delhi riots related cases registered by the police. Now, it is up to the courts to see who are the accused." Union Ministry of Home Affairs, had also  sanctioned Delhi Police, which works under it, to probe allegations against Umar Khalid, a former JNU scholar and student leader, under the anti-terror UAPA. It was after these prosecution sanctions against Khalid were received that the Delhi Police named Khalid in their supplementary charge sheet.

These sanctions are a legal requirement, stated news reports, before an individual can be prosecuted under UAPA. "To prosecute one under section 13 of the UAPA, we need sanction from the Ministry of Home Affairs, which we have already received. For prosecution under section -- 16,17 and 18 of the UAPA, we have received sanction from the Delhi government," the officer was quoted.

 

Related:

MHA, Delhi Govt sanction Umar Khalid's prosecution under UAPA

Furnishing hard copy of Chargesheet to accused mandatory: Delhi court

Books, winter clothes, fresh air for Umar Khalid; but it took a Court to direct police 

Umar Khalid alleges forced solitary confinement by jail authorities

Umar Khalid arrest: Court told Delhi Police that no person can be detained without being informed about the grounds of arrest

10 times Umar Khalid inspired Indians

Another supplementary charge sheet against Umar Khalid!  

The 930-page chargesheet by the Delhi Police cites Khalid’s trip to Patna as part of ‘conspiracy’ leading to riots

Umar Khalid

Delhi Police have filed yet another supplementary charge sheet against Dr. Umar Khalid in its ongoing investigations into the North East Delhi communal violence of February 2020. The Delhi Police's 930-page chargesheet cites Khalid’s trip to Patna as a part of a ‘conspiracy’, reports The Indian Express. The report cites sources saying that according to the Delhi Police, Umar Khalid left the city “during the visit of US President Donald Trump on February 23 for Patna and came back on February 27.” This has been  stated by the Delhi Police Special Cell in a supplementary chargesheet filed on Sunday before a Delhi court in connection with the Northeast Delhi riots reported IE. 

According to the report, this chargesheet names Khalid, JNU student Sharjeel Imam and one Faizan Khan, a ‘SIM card provider’ in a “conspiracy” case related to the riots. The charge sheet was filed before Additional Sessions Judge Amitabh Rawat against Khalid, Imam and Khan, who was on bail, under sections of the stringent Unlawful Activities (Prevention) Act (UAPA). All of them have also been accused of “rioting, unlawful assembly, criminal conspiracy, murder, promoting enmity on grounds of religion, language, caste, etc” and other sections of the IPC reported IE.

The 930-page chargesheet stated that as part of the conspiracy, Khalid left the city during the visit of US President Donald Trump on February 23 for Patna and came back on February 27. 

According to IE the police registered an FIR against Khalid on March 6 based on information provided by an informer to sub-inspector Arvind Kumar of the narcotics unit of the Crime Branch. According to the FIR, Kumar stated the informer told him that the Northeast Delhi riots in February were part of a “premeditated conspiracy” allegedly hatched by Khalid, one Danish, and two others associated with different organisations. That FIR states: “Khalid allegedly gave provocative speeches at two different places and appealed to the citizens to come out on the streets and block the roads during the visit of US President Donald Trump to spread propaganda at the international level about how minorities in India are being persecuted.”

Kumar has alleged in the FIR that as part of the conspiracy, ‘firearms, petrol bombs, acid bottles, and stones were stored at homes in Kardampuri, Jafrabad, Chand Bagh, Gokulpuri, Shiv Vihar and nearby areas’. Delhi Police in their charge sheet also alleged that suspended AAP councillor Tahir Hussain met with Khalid and Khalid Saifi of ‘United Against Hate’ at Shaheen Bagh, where they “hatched conspiracy for riots at the time of Trump’s visit.”

The man identified as Faizan Khan has been accused of providing and activating a SIM card, which was “used by the Jamia Coordination Committee, a group of students and activists which protested against the new citizenship law”. The IE reported that as per police, “the SIM card was activated on the demand of Jamia Millia Islamia student Asif Iqbal Tanha, who is also an accused in the case and it was issued on the basis of forged documents.” Umar Khalid was arrested in connection with the riots in Khajuri Khas on October 1, while he was in judicial custody in another case related to an alleged conspiracy in the violence.

 Recently, the Arvind Kejriwal led Delhi Government and the Union Ministry of Home Affairs, had sanctioned the Delhi Police to prosecute  Umar Khalid under the stringent anti-terror Unlawful Activities (Prevention) Act (UAPA) on Friday. A Delhi government officer had told the media that they had “given prosecution sanction in all the Delhi riots related cases registered by the police. Now, it is up to the courts to see who are the accused." Union Ministry of Home Affairs, had also  sanctioned Delhi Police, which works under it, to probe allegations against Umar Khalid, a former JNU scholar and student leader, under the anti-terror UAPA. It was after these prosecution sanctions against Khalid were received that the Delhi Police named Khalid in their supplementary charge sheet.

These sanctions are a legal requirement, stated news reports, before an individual can be prosecuted under UAPA. "To prosecute one under section 13 of the UAPA, we need sanction from the Ministry of Home Affairs, which we have already received. For prosecution under section -- 16,17 and 18 of the UAPA, we have received sanction from the Delhi government," the officer was quoted.

 

Related:

MHA, Delhi Govt sanction Umar Khalid's prosecution under UAPA

Furnishing hard copy of Chargesheet to accused mandatory: Delhi court

Books, winter clothes, fresh air for Umar Khalid; but it took a Court to direct police 

Umar Khalid alleges forced solitary confinement by jail authorities

Umar Khalid arrest: Court told Delhi Police that no person can be detained without being informed about the grounds of arrest

10 times Umar Khalid inspired Indians

Related Articles


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Hathras case: All accused to undergo brain mapping, polygraph tests

As the next date for hearing approaches before the Allahabad High Court, the CBI is yet to decide a date to conduct the tests.

23 Nov 2020

hathras gang rape

The four accused in the Hathras gang rape and murder case were taken to Gandhinagar in Gujarat for brain mapping and polygraph tests by the Central Bureau of Investigation (CBI) on November 21, reported The Indian Express.

The four accused have been lodged in the Aligarh Jail. Alok Singh, the Superintendent at Aligarh Jail told The Hindustan Times that, “The accused will be subjected to polygraph test and brain mapping in Gandhi Nagar. They will return to the jail after the tests.”

An official of the Gandhinagar FSL informed the media, “The CBI officials came for a discussion on the polygraph and brain-mapping test of the accused for which a date will be decided soon. The accused were not brought to the FSL today (November 21)”.

PUCL’s Report

People’s Union for Civil Liberties (PUCL), Uttar Pradesh members Kamal Singh, Farman Naqvi, Alok, Shashikant and K.B. Maurya had visited Boolgarhi village in Hathras and filed a report titled “A Black Story’ highlighting the status of the CBI investigation into the case up until now.

During a press conference on Saturday, Kamal Singh said, “When we went to meet the family, it seemed like we were going to meet a terrorist in his cell and not the family of a horrifying rape victim. The victim's family is still not assured despite the CBI investigation. The whole family is in a kind of house arrest. Their normal social life is cut off. Family members are afraid for their lives”, The Wire reported.

The PUCL activists revealed the plight of the family members fearing for their lives once the CRPF protection is withdrawn. Kamal singh stated in the press conference, “The victim’s father has told us that he would send his sons outside to work, rather than stay in this village for security reasons. We are also concerned for the family’s safety because the nexus between the local administration, the police as well as the upper caste members of the village will go back to how it was before. I am worried for the day that the security will be withdrawn.”

SC/ST welfare panel

This also comes at a time when the members of the parliamentary committee on the welfare of Scheduled Castes and Scheduled Tribes were not allowed to visit Hathras to meet the deceased’s family members.

The Telegraph apprised that the committee had met on October 20 to discuss representation of SC/ST employees at Delhi University when some of the members requested the Chairman to permit a visit to the Hathras family. The Chairman Kirit Premjibhai Solanki, however, rejected the proposal citing jurisdictional issues.

“When the request was made to visit the victim’s family, the chairman did not agree. He said the Speaker would not agree to such a trip. He also said that a visit to the victim’s family was under the jurisdiction of the National Commission for Scheduled Castes (NCSC),” a panel source told the Telegraph.  

Background

The CBI was entrusted with the investigation into the rape and murder of the Dalit teen by the Uttar Pradesh Government on October 10. The Supreme Court in Satyama Dubey and Ors v Union of India (W.P Crl. No. 296 of 2020), had directed the High Court of Allahabad to monitor the CBI probe via its order dated October 27.

“High Court would look into that aspect of the matter, the CBI shall report to the High Court in the manner as would be directed by the High Court through its orders from time to time”, said the Bench.

Citizens for Justice and Peace (CJP) through its Secretary Ms. Teesta Setalvad had also moved an Intervention Application (Crl. M.P. No. 102148 of 2020) as listed third in the abovementioned Supreme Court order demanding a CBI probe, protection of witness by Central Para Military Force and appointment of a retired Supreme Court Judge to investigate the circumstances which led to the cremation of the victim on September 30.

The top court had ordered for Central Reserve Police Force (CRPF) protection, a key plea in CJP’s application, for the family and witnesses as a confidence building measure. The Allahabad High Court in its earlier order dated November 2, had also sought for a status report from the CBI to be filed before the next hearing.  

CJP had, through a Letter petition, dated October 9, sought to intervene in the ongoing suo moto matter in the Allahabad High Court (Lucknow bench). At the last hearing on November 2, 2020, the Letter petition was allowed and CJP is now permitted to intervene by the next date of hearing on November 25.  

The matter before the High Court is expected to be heard at 3:15 pm on November 25.

Related:

CJP moves Supreme Court in Hathras case

Hathras case: High Court seeks status report from CBI

Hathras: SC directs CRPF for witness protection

Hathras case: All accused to undergo brain mapping, polygraph tests

As the next date for hearing approaches before the Allahabad High Court, the CBI is yet to decide a date to conduct the tests.

hathras gang rape

The four accused in the Hathras gang rape and murder case were taken to Gandhinagar in Gujarat for brain mapping and polygraph tests by the Central Bureau of Investigation (CBI) on November 21, reported The Indian Express.

The four accused have been lodged in the Aligarh Jail. Alok Singh, the Superintendent at Aligarh Jail told The Hindustan Times that, “The accused will be subjected to polygraph test and brain mapping in Gandhi Nagar. They will return to the jail after the tests.”

An official of the Gandhinagar FSL informed the media, “The CBI officials came for a discussion on the polygraph and brain-mapping test of the accused for which a date will be decided soon. The accused were not brought to the FSL today (November 21)”.

PUCL’s Report

People’s Union for Civil Liberties (PUCL), Uttar Pradesh members Kamal Singh, Farman Naqvi, Alok, Shashikant and K.B. Maurya had visited Boolgarhi village in Hathras and filed a report titled “A Black Story’ highlighting the status of the CBI investigation into the case up until now.

During a press conference on Saturday, Kamal Singh said, “When we went to meet the family, it seemed like we were going to meet a terrorist in his cell and not the family of a horrifying rape victim. The victim's family is still not assured despite the CBI investigation. The whole family is in a kind of house arrest. Their normal social life is cut off. Family members are afraid for their lives”, The Wire reported.

The PUCL activists revealed the plight of the family members fearing for their lives once the CRPF protection is withdrawn. Kamal singh stated in the press conference, “The victim’s father has told us that he would send his sons outside to work, rather than stay in this village for security reasons. We are also concerned for the family’s safety because the nexus between the local administration, the police as well as the upper caste members of the village will go back to how it was before. I am worried for the day that the security will be withdrawn.”

SC/ST welfare panel

This also comes at a time when the members of the parliamentary committee on the welfare of Scheduled Castes and Scheduled Tribes were not allowed to visit Hathras to meet the deceased’s family members.

The Telegraph apprised that the committee had met on October 20 to discuss representation of SC/ST employees at Delhi University when some of the members requested the Chairman to permit a visit to the Hathras family. The Chairman Kirit Premjibhai Solanki, however, rejected the proposal citing jurisdictional issues.

“When the request was made to visit the victim’s family, the chairman did not agree. He said the Speaker would not agree to such a trip. He also said that a visit to the victim’s family was under the jurisdiction of the National Commission for Scheduled Castes (NCSC),” a panel source told the Telegraph.  

Background

The CBI was entrusted with the investigation into the rape and murder of the Dalit teen by the Uttar Pradesh Government on October 10. The Supreme Court in Satyama Dubey and Ors v Union of India (W.P Crl. No. 296 of 2020), had directed the High Court of Allahabad to monitor the CBI probe via its order dated October 27.

“High Court would look into that aspect of the matter, the CBI shall report to the High Court in the manner as would be directed by the High Court through its orders from time to time”, said the Bench.

Citizens for Justice and Peace (CJP) through its Secretary Ms. Teesta Setalvad had also moved an Intervention Application (Crl. M.P. No. 102148 of 2020) as listed third in the abovementioned Supreme Court order demanding a CBI probe, protection of witness by Central Para Military Force and appointment of a retired Supreme Court Judge to investigate the circumstances which led to the cremation of the victim on September 30.

The top court had ordered for Central Reserve Police Force (CRPF) protection, a key plea in CJP’s application, for the family and witnesses as a confidence building measure. The Allahabad High Court in its earlier order dated November 2, had also sought for a status report from the CBI to be filed before the next hearing.  

CJP had, through a Letter petition, dated October 9, sought to intervene in the ongoing suo moto matter in the Allahabad High Court (Lucknow bench). At the last hearing on November 2, 2020, the Letter petition was allowed and CJP is now permitted to intervene by the next date of hearing on November 25.  

The matter before the High Court is expected to be heard at 3:15 pm on November 25.

Related:

CJP moves Supreme Court in Hathras case

Hathras case: High Court seeks status report from CBI

Hathras: SC directs CRPF for witness protection

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Delhi riots: Activist Gulfisha Fatima gets bail, but will remain in jail under UAPA

Court says she’s not a flight risk, no danger to witnesses. However, she will remain at Tihar jail in judicial custody in a UAPA case

21 Nov 2020

Image Courtesy:indianexpress.com

Human rights defender Gulfisha Fatima, a Jamia Millia Islamia student arrested and lodged in Tihar Jail  under the stringent Unlawful Activities (Prevention) Act, in connection with the Northeast Delhi riots, has been granted bail in a case.

A Delhi court Saturday granted bail to student activist Gulfisha Fatima, arrested in a northeast Delhi riots case in which an 18-year-old man had died, reported the Indian Express. Additional Sessions Judge Amitabh Rawat granted the bail on furnishing a personal bond of Rs 30,000 with one surety of the same amount.

According to the news report the court had observed that there was “nothing to suggest that witnesses in the case were under threat, or that she was a flight risk”. However, Gulfisha Fatima, will remain at Tihar jail, as she is in judicial custody in a UAPA case being investigated by Special Cell. She  has been in custody in this case since June 3, and has been accused of participating in and instigating the alleged “unlawful assembly which committed riots in which a man identified as Amaan died” stated the IE report.

Granting her bail the court said: “there is nothing to suggest that the witnesses are under threat from the concerned applicant. In any case, two public witnesses are protected and their identity has been concealed. The rest are police personnel”. And when the police argued that Gulfisha was also under investigation for the larger conspiracy in the UAPA case, the court replied: “We will cross the bridge when we come to it. The present stage is of bail and not acquittal or conviction. Nothing is shown to suggest that the applicant is a flight risk. The IE reported that the court considered the period of the custody of the applicant, and grounds of parity, as co-­accused Devangana Kalita and Natasha Narwal have been granted bail.

Gulfisha’s lawyer, Mehmood Pracha, had told the court she “has been falsely and maliciously implicated in the present case without any evidence.  No role has been attributed to the applicant except vague and unsubstantiated allegations which have no nexus with the alleged crime.” 

According to IE, Rajeev Krishan Sharma, the special public prosecutor appearing on behalf of the state, told the court that Gulfisha was seen in video clips “controlling, instigating and provoking local rioters as well as managing non-­resident rioters. They used code words with their group members to convey secret messages regarding further line of their protest/riot in front of common people. They also gave hate speeches at Jafrabad Metro Station and continuously stayed there till last.”

Related:

Delhi Riots: HC stays trial of accused booked under UAPA
Delhi Court dismisses plea of Gulfisha Fatima and 2 others booked under UAPA seeking statutory bail 
If I hurt myself, only jail authorities will be responsible: Gulfisha Fatima
More activists named in riots case: Delhi Police getting desperate?
100 days and counting, free Gulfisha Fatima: Activists
Delhi Violence case: Court reprimands police for failure to get video footage

Delhi riots: Activist Gulfisha Fatima gets bail, but will remain in jail under UAPA

Court says she’s not a flight risk, no danger to witnesses. However, she will remain at Tihar jail in judicial custody in a UAPA case

Image Courtesy:indianexpress.com

Human rights defender Gulfisha Fatima, a Jamia Millia Islamia student arrested and lodged in Tihar Jail  under the stringent Unlawful Activities (Prevention) Act, in connection with the Northeast Delhi riots, has been granted bail in a case.

A Delhi court Saturday granted bail to student activist Gulfisha Fatima, arrested in a northeast Delhi riots case in which an 18-year-old man had died, reported the Indian Express. Additional Sessions Judge Amitabh Rawat granted the bail on furnishing a personal bond of Rs 30,000 with one surety of the same amount.

According to the news report the court had observed that there was “nothing to suggest that witnesses in the case were under threat, or that she was a flight risk”. However, Gulfisha Fatima, will remain at Tihar jail, as she is in judicial custody in a UAPA case being investigated by Special Cell. She  has been in custody in this case since June 3, and has been accused of participating in and instigating the alleged “unlawful assembly which committed riots in which a man identified as Amaan died” stated the IE report.

Granting her bail the court said: “there is nothing to suggest that the witnesses are under threat from the concerned applicant. In any case, two public witnesses are protected and their identity has been concealed. The rest are police personnel”. And when the police argued that Gulfisha was also under investigation for the larger conspiracy in the UAPA case, the court replied: “We will cross the bridge when we come to it. The present stage is of bail and not acquittal or conviction. Nothing is shown to suggest that the applicant is a flight risk. The IE reported that the court considered the period of the custody of the applicant, and grounds of parity, as co-­accused Devangana Kalita and Natasha Narwal have been granted bail.

Gulfisha’s lawyer, Mehmood Pracha, had told the court she “has been falsely and maliciously implicated in the present case without any evidence.  No role has been attributed to the applicant except vague and unsubstantiated allegations which have no nexus with the alleged crime.” 

According to IE, Rajeev Krishan Sharma, the special public prosecutor appearing on behalf of the state, told the court that Gulfisha was seen in video clips “controlling, instigating and provoking local rioters as well as managing non-­resident rioters. They used code words with their group members to convey secret messages regarding further line of their protest/riot in front of common people. They also gave hate speeches at Jafrabad Metro Station and continuously stayed there till last.”

Related:

Delhi Riots: HC stays trial of accused booked under UAPA
Delhi Court dismisses plea of Gulfisha Fatima and 2 others booked under UAPA seeking statutory bail 
If I hurt myself, only jail authorities will be responsible: Gulfisha Fatima
More activists named in riots case: Delhi Police getting desperate?
100 days and counting, free Gulfisha Fatima: Activists
Delhi Violence case: Court reprimands police for failure to get video footage

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MJ Akbar vs Priya Ramani: Court asks if there is a possibility of a settlement

Counsel for Ramani who accused MJ Akbar of sexual harassment, has submitted that chances of settlement are bleak

21 Nov 2020

Image Courtesy:indianexpress.com

In the ongoing criminal defamation case between MJ Akbar and Priya Ramani, the Additional Chief Metropolitan Magistrate Ravindra Kumar Pandey has asked both the parties to think about the possibility of reaching a compromise.

Mr Bhavook Chauhan appeared for Priya Ramani and Senior Advocate Geeta Luthra represented MJ Akbar.

According to media reports, ACMM Pandey said, “The dispute between the two parties is compoundable in nature. You are senior lawyers and have settled disputes over the years. Is there a possibility of a settlement? I don’t know much about the case. I don’t know the level of the dispute. Prima facie, what I understand is that it is compoundable in nature. Both sides should decide, otherwise I will keep this for final arguments.”

Counsel appearing for Ms. Ramani informed the court that the chances of compromise are bleak as the facts of the case were peculiar in nature and that his client, Ms. Ramani stands by her statement and allegations.

When the court asked if Senior Advocate Luthra is willing to settle, she said that she will have to discuss it with her briefing counsel. The judge told the parties to explore this possibility and inform the court if they were willing to avail the same.

This matter will now be heard on November 24.

On October 13, SabrangIndia had reported on the defamation case being transferred to District and Sessions Judge after having Senior Advocate Rebecca John spend three long months arguing the case on behalf of journalist Priya Ramani.

When the #MeToo movement was gaining traction in India, as many as 17 women had accused the former Union Minister of sexual misconduct including rape in one case. In October, 2018, MJ Akbar filed a criminal defamation case against Priya Ramani blaming her for tarnishing his reputation and calling him names such as ‘media’s biggest predator’.

Till date, he has denied all allegations terming it “false, fabricated and deeply distressing”.  

Related:

MJ Akbar defamation case against Priya Ramani transferred to District and Sessions Judge
#MeToo: From Courtroom to Cinema
On Akbar and the #MeToo Movement
After #MeToo: Legal System Needs Change

MJ Akbar vs Priya Ramani: Court asks if there is a possibility of a settlement

Counsel for Ramani who accused MJ Akbar of sexual harassment, has submitted that chances of settlement are bleak

Image Courtesy:indianexpress.com

In the ongoing criminal defamation case between MJ Akbar and Priya Ramani, the Additional Chief Metropolitan Magistrate Ravindra Kumar Pandey has asked both the parties to think about the possibility of reaching a compromise.

Mr Bhavook Chauhan appeared for Priya Ramani and Senior Advocate Geeta Luthra represented MJ Akbar.

According to media reports, ACMM Pandey said, “The dispute between the two parties is compoundable in nature. You are senior lawyers and have settled disputes over the years. Is there a possibility of a settlement? I don’t know much about the case. I don’t know the level of the dispute. Prima facie, what I understand is that it is compoundable in nature. Both sides should decide, otherwise I will keep this for final arguments.”

Counsel appearing for Ms. Ramani informed the court that the chances of compromise are bleak as the facts of the case were peculiar in nature and that his client, Ms. Ramani stands by her statement and allegations.

When the court asked if Senior Advocate Luthra is willing to settle, she said that she will have to discuss it with her briefing counsel. The judge told the parties to explore this possibility and inform the court if they were willing to avail the same.

This matter will now be heard on November 24.

On October 13, SabrangIndia had reported on the defamation case being transferred to District and Sessions Judge after having Senior Advocate Rebecca John spend three long months arguing the case on behalf of journalist Priya Ramani.

When the #MeToo movement was gaining traction in India, as many as 17 women had accused the former Union Minister of sexual misconduct including rape in one case. In October, 2018, MJ Akbar filed a criminal defamation case against Priya Ramani blaming her for tarnishing his reputation and calling him names such as ‘media’s biggest predator’.

Till date, he has denied all allegations terming it “false, fabricated and deeply distressing”.  

Related:

MJ Akbar defamation case against Priya Ramani transferred to District and Sessions Judge
#MeToo: From Courtroom to Cinema
On Akbar and the #MeToo Movement
After #MeToo: Legal System Needs Change

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Will the new amendment to Kerala Police Act curb free speech?

The Government has come up with a provision in the act to curb instances of defamatory and insulting content on social media

21 Nov 2020

 

Image Courtesy:onmanorama.com

Today, the Kerala Governor Arif Mohammad Khan has signed the Kerala Police Act Amendment ordinance to prevent misuse of social media especially against women and children.

Since the Governor is empowered to promulgate an ordinance when the State Legislature is in recess under Article 213 of the Constitution of India, the Left Democratic Front Government had recommended the insertion of section 118 A in the Kerala Police Act, 2011, in October this year.

Section 118A provides either imprisonment for up to five years or a fine of up to Rs 10,000/- or both to those who produce, publish or disseminate content through any means of communication with an intention to intimidate, insult or defame any person through social media.

The opposition in Kerala have asserted that giving such kind of unchecked authority to the Police will curb freedom of speech. However, Chief Minister Pinarayi Vijayan, rejecting such assertions, has factored in the increasing levels of social media hate to tarnish a person’s reputation as per The Economic Times.

Background  

In September, 2020, Vijay P. Nair a YouTuber was assaulted by three women for his disparaging video on a YouTube channel abusing feminists and reputed women in the State including famous dubbing artist Bhagyalakshmi and veteran poet, activist Sugathakumari. Triggering widespread condemnation, the Kerala Chief Minister stood by the women against such defamatory comments.

The Week reported the CM saying, “the government views the actions, breaching the bounds of decency and humanity, in insulting women very seriously. Strict action will be taken against those who misuse the social media facilities to abuse women. If the existing laws are not sufficient for it, appropriate legislation will be considered. The state stands by the women who became the victims of abuse.”

Shreya Singhal judgement

The Supreme Court’s observation in Shreya Singhal v Union of India (2015) 5 SCC 1, is pertinent to comprehend the implication of this new section 118 A in the Police Act. The court had struck down section 118(d) of the Kerala Police Act and section 66A of the Information Technology Act.

Section 118(d) provides that causing annoyance to any person in an indecent manner by statements or verbal or comments or telephone calls or calls of any type or by chasing or sending messages or emails by any means shall be punishable with imprisonment for a term which may extend to three years or with fine not exceeding ten thousand rupees or with both.

Section 66A of the IT Act, very similar to section 118(d), penalises people sending offensive or menacing messages through communication. The court had struck down both sections and held that the language of section 118(d) was vague and violative of section 19 (1) (a) of the Constitution entailing freedom of speech and expression.

Impact of this new section

In Shreya Singhal, as already discussed, the court observed that the practice of police to arrest people on charges of posting objectionable content on the internet under section 66A of the IT Act infringed a person’s freedom of speech, hence rendered it unconstitutional. A similar reason on grounds of vagueness and overbreadth was used to invalidate section 118(d) of the Kerala Police Act.

With this new development in the Act, the Police gets sufficient power to mis(use) it under the garb of public tranquillity. The provision is left open ended for the State to decipher what content has the ability to defame, intimidate and insult a person. This law can further criminalise media reportage and cause a crack down on fair democratic practice.

Introducing legal provisions to tackle the escalating crime graph, cyber-crime, fake propaganda, should be strictly dealt with by the Government, but at the same time it should not have a chilling effect on free speech. A positive step towards constructing appropriate legislation dealing with online harassment would be to first define extensively the notions of intimidation, insult, etc and to give it some shape.

Increasing scrutiny by the executive branch to gather data on your social media activity, infringes the rules of privacy, and does not leave enough room for a healthy mechanism of regulation by intermediaries. A pragmatic framework will go a longer way in dealing with the such menacing content instead of the Police censoring speech.  

Related:

Where does the law stand on your “objectionable” posts on social media?
YouTuber assault case: Kerala HC grants pre arrest bail to three women

Will the new amendment to Kerala Police Act curb free speech?

The Government has come up with a provision in the act to curb instances of defamatory and insulting content on social media

 

Image Courtesy:onmanorama.com

Today, the Kerala Governor Arif Mohammad Khan has signed the Kerala Police Act Amendment ordinance to prevent misuse of social media especially against women and children.

Since the Governor is empowered to promulgate an ordinance when the State Legislature is in recess under Article 213 of the Constitution of India, the Left Democratic Front Government had recommended the insertion of section 118 A in the Kerala Police Act, 2011, in October this year.

Section 118A provides either imprisonment for up to five years or a fine of up to Rs 10,000/- or both to those who produce, publish or disseminate content through any means of communication with an intention to intimidate, insult or defame any person through social media.

The opposition in Kerala have asserted that giving such kind of unchecked authority to the Police will curb freedom of speech. However, Chief Minister Pinarayi Vijayan, rejecting such assertions, has factored in the increasing levels of social media hate to tarnish a person’s reputation as per The Economic Times.

Background  

In September, 2020, Vijay P. Nair a YouTuber was assaulted by three women for his disparaging video on a YouTube channel abusing feminists and reputed women in the State including famous dubbing artist Bhagyalakshmi and veteran poet, activist Sugathakumari. Triggering widespread condemnation, the Kerala Chief Minister stood by the women against such defamatory comments.

The Week reported the CM saying, “the government views the actions, breaching the bounds of decency and humanity, in insulting women very seriously. Strict action will be taken against those who misuse the social media facilities to abuse women. If the existing laws are not sufficient for it, appropriate legislation will be considered. The state stands by the women who became the victims of abuse.”

Shreya Singhal judgement

The Supreme Court’s observation in Shreya Singhal v Union of India (2015) 5 SCC 1, is pertinent to comprehend the implication of this new section 118 A in the Police Act. The court had struck down section 118(d) of the Kerala Police Act and section 66A of the Information Technology Act.

Section 118(d) provides that causing annoyance to any person in an indecent manner by statements or verbal or comments or telephone calls or calls of any type or by chasing or sending messages or emails by any means shall be punishable with imprisonment for a term which may extend to three years or with fine not exceeding ten thousand rupees or with both.

Section 66A of the IT Act, very similar to section 118(d), penalises people sending offensive or menacing messages through communication. The court had struck down both sections and held that the language of section 118(d) was vague and violative of section 19 (1) (a) of the Constitution entailing freedom of speech and expression.

Impact of this new section

In Shreya Singhal, as already discussed, the court observed that the practice of police to arrest people on charges of posting objectionable content on the internet under section 66A of the IT Act infringed a person’s freedom of speech, hence rendered it unconstitutional. A similar reason on grounds of vagueness and overbreadth was used to invalidate section 118(d) of the Kerala Police Act.

With this new development in the Act, the Police gets sufficient power to mis(use) it under the garb of public tranquillity. The provision is left open ended for the State to decipher what content has the ability to defame, intimidate and insult a person. This law can further criminalise media reportage and cause a crack down on fair democratic practice.

Introducing legal provisions to tackle the escalating crime graph, cyber-crime, fake propaganda, should be strictly dealt with by the Government, but at the same time it should not have a chilling effect on free speech. A positive step towards constructing appropriate legislation dealing with online harassment would be to first define extensively the notions of intimidation, insult, etc and to give it some shape.

Increasing scrutiny by the executive branch to gather data on your social media activity, infringes the rules of privacy, and does not leave enough room for a healthy mechanism of regulation by intermediaries. A pragmatic framework will go a longer way in dealing with the such menacing content instead of the Police censoring speech.  

Related:

Where does the law stand on your “objectionable” posts on social media?
YouTuber assault case: Kerala HC grants pre arrest bail to three women

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Siddique Kappan used “journalist cover” to disrupt law & order: UP Gov’t to SC

The top court had directed the Uttar Pradesh Government to respond to a petition moved by KUWJ for Kappan’s release

21 Nov 2020

Image Courtesy:thewire.in

The State of Uttar Pradesh has submitted before the Supreme Court that Siddique Kappan, a journalist who was arrested with alleged Popular Front of India (PFI) members and their driver on their way to Hathras, is the Office Secretary of PFI.

“The person in custody namely Siddique Kappan is the Office Secretary of Popular Front of India (PFI) using a journalist cover by showing the identity card of a Kerala based newspaper named as ‘Tejas’ which was closed in 2018,” alleges the affidavit.

The State further submitted, “It is revealed during investigation that he along with other PFI activists and their student wing (Campus Front of India) leaders were going to Hathras under the garb of journalism with a very determined design to create a caste divide and disturb law and order situation.”

Refuting all allegations made by the petitioner Union, Kerala Union of Working Journalists (KUWJ), the affidavit submits, “The petitioner has resorted to falsehood and has made several false statements on oath only to sensationalise the case.”

The affidavit states, “When he was brought by the Special Task Force to Delhi, he misled the police by giving the wrong residential address which was found invalid. He did not assist in the investigation and gave misleading details. His flat mate who is also a member of PFI and its various wings denied access.”

The primary contention of the petitioner union before the apex court was that Siddique was being denied access to lawyers and that is why they could not approach the Allahabad High Court.

But the affidavit alleges that, “The petitioner has no locus to file the petition since the accused is already in touch with his lawyers and relatives and he himself can file proceedings through his lawyers. The accused Siddique Kappan is not in illegal custody/ confinement but is in judicial custody in pursuance of the valid judicial order passed by the competent court.”

With respect to meeting his family members, the affidavit states that Siddique’s family members were informed about his arrest and that the petitioners have only made false statements. “..immediately after the arrest of accused Siddique Kappan on 05.10.2020 (October 5, 2020), he gave contact details of his brother Mr. Amza (78…). The Police through the mobile phone of Constable Vinay Rahi (82..) informed Mr. Amza on October 5 itself about the time and place of arrest, and exact location where the accused was detained”, mentions the affidavit.

The Government of Uttar Pradesh has further submitted that, “At the outset, it is stated that no family member of the accused has approached the jail authorities till date for meeting the accused. It is further stated that no lawyer has ever approached the jail authorities with a Vakalatnama to be signed by the accused Siddique Kappan till date.”

“It is pertinent to state that on 06.11.2020 (October 6, 2020) one Mr. Maula Ali, Advocate, who had come from Delhi duly interacted with accused Siddique Kappan at the Court premises with the permission of the Ld. CJM (Chief Judicial Magistrate),” adds the affidavit.

During yesterday’s brief hearing before the Bench of the Chief Justice SA Bobde, Justices A.S. Bopanna and V. Ramasubramanian, the Solicitor General Tushar Mehta representing the respondent State had stated that there was no objection from the State to Siddique meeting his lawyers.

The Supreme Court noted the submission made by SG Tushar Mehta for the respondent State yesterday, stating that the “Advocate can meet the accused in the Jail where he is lodged to take instructions and the signature in the Vakalatnama.” Further, the top court allowed the petitioner to file a “rejoinder affidavit in the meanwhile” and listed the case for next week.

Siddique Kappan, a freelance journalist was arrested on his way to Hathras on October 5 for carrying suspicious literature and booked under sections of UAPA and IPC, alleging promotion of enmity between different religions and funding a terrorist act. Subsequently, KUWJ had moved a habeas corpus petition in the Supreme Court against his arrest, deeming it constitutional.

The SC order and the affidavit may be read here:

Related:

No objection to Siddique meeting his lawyer: UP gov't to SC
We are trying to discourage Article 32 petitions: Chief Justice of India
Hathras arrest: Union moves SC to allow journalist to talk to family, lawyers

Siddique Kappan used “journalist cover” to disrupt law & order: UP Gov’t to SC

The top court had directed the Uttar Pradesh Government to respond to a petition moved by KUWJ for Kappan’s release

Image Courtesy:thewire.in

The State of Uttar Pradesh has submitted before the Supreme Court that Siddique Kappan, a journalist who was arrested with alleged Popular Front of India (PFI) members and their driver on their way to Hathras, is the Office Secretary of PFI.

“The person in custody namely Siddique Kappan is the Office Secretary of Popular Front of India (PFI) using a journalist cover by showing the identity card of a Kerala based newspaper named as ‘Tejas’ which was closed in 2018,” alleges the affidavit.

The State further submitted, “It is revealed during investigation that he along with other PFI activists and their student wing (Campus Front of India) leaders were going to Hathras under the garb of journalism with a very determined design to create a caste divide and disturb law and order situation.”

Refuting all allegations made by the petitioner Union, Kerala Union of Working Journalists (KUWJ), the affidavit submits, “The petitioner has resorted to falsehood and has made several false statements on oath only to sensationalise the case.”

The affidavit states, “When he was brought by the Special Task Force to Delhi, he misled the police by giving the wrong residential address which was found invalid. He did not assist in the investigation and gave misleading details. His flat mate who is also a member of PFI and its various wings denied access.”

The primary contention of the petitioner union before the apex court was that Siddique was being denied access to lawyers and that is why they could not approach the Allahabad High Court.

But the affidavit alleges that, “The petitioner has no locus to file the petition since the accused is already in touch with his lawyers and relatives and he himself can file proceedings through his lawyers. The accused Siddique Kappan is not in illegal custody/ confinement but is in judicial custody in pursuance of the valid judicial order passed by the competent court.”

With respect to meeting his family members, the affidavit states that Siddique’s family members were informed about his arrest and that the petitioners have only made false statements. “..immediately after the arrest of accused Siddique Kappan on 05.10.2020 (October 5, 2020), he gave contact details of his brother Mr. Amza (78…). The Police through the mobile phone of Constable Vinay Rahi (82..) informed Mr. Amza on October 5 itself about the time and place of arrest, and exact location where the accused was detained”, mentions the affidavit.

The Government of Uttar Pradesh has further submitted that, “At the outset, it is stated that no family member of the accused has approached the jail authorities till date for meeting the accused. It is further stated that no lawyer has ever approached the jail authorities with a Vakalatnama to be signed by the accused Siddique Kappan till date.”

“It is pertinent to state that on 06.11.2020 (October 6, 2020) one Mr. Maula Ali, Advocate, who had come from Delhi duly interacted with accused Siddique Kappan at the Court premises with the permission of the Ld. CJM (Chief Judicial Magistrate),” adds the affidavit.

During yesterday’s brief hearing before the Bench of the Chief Justice SA Bobde, Justices A.S. Bopanna and V. Ramasubramanian, the Solicitor General Tushar Mehta representing the respondent State had stated that there was no objection from the State to Siddique meeting his lawyers.

The Supreme Court noted the submission made by SG Tushar Mehta for the respondent State yesterday, stating that the “Advocate can meet the accused in the Jail where he is lodged to take instructions and the signature in the Vakalatnama.” Further, the top court allowed the petitioner to file a “rejoinder affidavit in the meanwhile” and listed the case for next week.

Siddique Kappan, a freelance journalist was arrested on his way to Hathras on October 5 for carrying suspicious literature and booked under sections of UAPA and IPC, alleging promotion of enmity between different religions and funding a terrorist act. Subsequently, KUWJ had moved a habeas corpus petition in the Supreme Court against his arrest, deeming it constitutional.

The SC order and the affidavit may be read here:

Related:

No objection to Siddique meeting his lawyer: UP gov't to SC
We are trying to discourage Article 32 petitions: Chief Justice of India
Hathras arrest: Union moves SC to allow journalist to talk to family, lawyers

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Impact of a High Court striking down a Central law as invalid

The Supreme Court, on November 17, asked a petitioner to take his petition challenging a central law to the high court. What impact does that have on jurisprudence?

21 Nov 2020

Image Courtesy:indiatvnews.com

The Supreme Court recently refused to entertain a plea challenging validity of a central law questioning why the petitioner had not approached the High Court where the cause of action had arisen. The petitioner was challenging the Epidemic Diseases Act and the bench of Justices DY Chandrachud, Indu Malhotra and Indira Banerjee were hearing  the petition. Justice Chandrachud noted, “So High Courts have jurisdiction in respect of central Acts. You don't have to come to the Supreme Court. You are anyway on the issue of quarantine in Maharashtra…Every High Court in the country has the power to strike down a law for being in the teeth of Article 245, 246 or Part III of the Constitution.”

It is common knowledge that high courts have writ jurisdiction and can decide the question of law in a particular case.

The Supreme Court asked the petitioner to approach the High Court as High Courts have the jurisdiction to rule over question of law or deciding constitutionality of a central law. This is a constitutionally sound order since there once existed a constitutional provision that embargoed High Courts from deciding the constitutional validity of central laws under the writ jurisdiction under Article 226.

The Forty-second Amendment Act, 1976 had inserted Article 226A in the Constitution: constitutional validity of central laws not to be considered in proceedings under Article 226. The same was repealed by the Forty-third Amendment Act, 1977.

The Law Commission of India 136th Report  titled Conflicts in High Court decisions on central law – how to forclose and how to resolve states that a provision mandating that the pronouncement of a high court on questions of law shall bind courts and authorities within the state is not found in the Constitution. But it is settled beyond doubt that the pronouncements of a high court have the same authority within the state as those of the Supreme Court have throughout India. This report had given some recommendations on how to resolve a question of law concerning a central law if another high court has already decided upon it. This has been discussed in the concluding part of this article.

So, when the apex court states that a central law can be challenged before a high court, one wonders what implication would the final judgement of that high court be? If the law is declared unconstitutional by one high court will it have to be followed by other states and high courts as well? The Constitution under Article 215 states that a High Court is a court of record which means that the decision of one high court will be binding upon lower courts within its territorial jurisdiction.

Hence, the only probable explanation to application of a judgment deciding constitutionality of central law by a high court, is that the Supreme Court will have to decide upon it. It has happened so in the past. There was a conflict of decision on interpretation of term “full owner” under section 14(1) of the Hindu Succession Act, 1956. Due to difference in interpretation of high courts, in an identical fact situation, a Hindu widow who inherited property in Orissa or Andhra Pradesh would be a limited owner but if she inherited property in Madras, Punjab, Bombay or Gujarat, she would become absolute owner; this was owing to the differing interpretations given by the high courts in these states. This lack of uniformity was finally resolved by the Supreme Court after 25 years of this confusion having arisen in the first place.

The high courts, although, have assumed that a judgment of a high court on constitutional validity of central law will be binding throughout India. The root cause of this common inference is the apex court judgment in Kusum Ingots & Alloys Ltd. v. Union of India [(2004) 6 SCC 254]. The apex court had stated thus,

'22. The Court must have the requisite territorial jurisdiction. An order passed on a writ petition questioning the constitutionality of a parliamentary Act, whether interim or final keeping in view the provisions contained in clause (2) of Article 226 of the Constitution of India, will have effect throughout the territory of India subject of course to the applicability of the Act.'

This is clearly the obiter dictum part of the judgment which in literal sense means, ‘that which is said in passing’. As per Cornell University’s Legal information Institute, obiter dictum is A comment, suggestion, or observation made by a judge in an opinion that is not necessary to resolve the case, and as such, it is not legally binding on other courts.

This is so because Article 226(1) of Indian Constitution specifically states that the power of High Courts is to be exercised within the territorial jurisdiction of the court and hence, to say that the pronouncement of one high court is binding throughout the country contravenes this constitutional provision.

The obiter dicta in Kusum Ingots is being read into by all High Courts because a Supreme court’s judgment is binding on all courts and becomes a precedent and so does the obiter dicta part of the judgment.

In Naz Foundation v. Government of NCT of Delhi and Others Delhi High Court had dealt with section 377 of the Indian Penal Code; a legal instrument that governs the criminal justice system in the whole of India. The high court had, inter alia, held that “Section 377 IPC, insofar as it criminalizes consensual sexual acts of adults in private, is violative of Articles 21, 14 and 15 of the Constitution”. The territorial extent of the application of this decision was not spelt out but the court stated that its interpretation shall stand till the parliament decides to act on the issue.

A high court’s decision cannot be binding upon other high courts, at the most it could have persuasive significance, i.e. it can be considered by another high court while making a decision but it is not mandated to follow it. Hence, the efficacy of letting a high court decide upon constitutional validity of a central law remains questionable and puts uniformity of law in the “Union of India” in danger. It might have to be ultimately decided by the Supreme Court, which means the litigator would rather approach the Supreme Court first, to get a final and binding judgment.

In another instance, the Delhi High Court is hearing a plea seeking registration of marriage of same sex couples under the Hindu Marriage Act, which is a central legislation. Although this is not a question of constitutional validity of any legal provision but if the court orders that same sex marriages be allowed to be registered under the central law that governs the whole of India, will the same be considered to be applicable throughout? Will a marriage registrar in Maharashtra follow the decision of the Delhi High Court? These questions remain unanswered.

The question of applicability of a central law being declared unconstitutional or invalid by a high court is still something that remains to be definitively decided by the apex court. The Law Commission of India 136th report recommended that if a High Court is faced with a problem pertaining to a central law on which another high court has already made a pronouncement and if the high court holds a different view then it shall make a reference to the Supreme Court to that regard along with a reasoned opinion of its own view. While this may seem like a viable legal recourse, the same has not been applied in the jurisprudence yet despite the report having been released three decades ago.

Related:

SC refuses to entertain plea challenging Epidemic Act

Delhi HC issues notice to Union in a plea to recognise same sex marriage

 

Impact of a High Court striking down a Central law as invalid

The Supreme Court, on November 17, asked a petitioner to take his petition challenging a central law to the high court. What impact does that have on jurisprudence?

Image Courtesy:indiatvnews.com

The Supreme Court recently refused to entertain a plea challenging validity of a central law questioning why the petitioner had not approached the High Court where the cause of action had arisen. The petitioner was challenging the Epidemic Diseases Act and the bench of Justices DY Chandrachud, Indu Malhotra and Indira Banerjee were hearing  the petition. Justice Chandrachud noted, “So High Courts have jurisdiction in respect of central Acts. You don't have to come to the Supreme Court. You are anyway on the issue of quarantine in Maharashtra…Every High Court in the country has the power to strike down a law for being in the teeth of Article 245, 246 or Part III of the Constitution.”

It is common knowledge that high courts have writ jurisdiction and can decide the question of law in a particular case.

The Supreme Court asked the petitioner to approach the High Court as High Courts have the jurisdiction to rule over question of law or deciding constitutionality of a central law. This is a constitutionally sound order since there once existed a constitutional provision that embargoed High Courts from deciding the constitutional validity of central laws under the writ jurisdiction under Article 226.

The Forty-second Amendment Act, 1976 had inserted Article 226A in the Constitution: constitutional validity of central laws not to be considered in proceedings under Article 226. The same was repealed by the Forty-third Amendment Act, 1977.

The Law Commission of India 136th Report  titled Conflicts in High Court decisions on central law – how to forclose and how to resolve states that a provision mandating that the pronouncement of a high court on questions of law shall bind courts and authorities within the state is not found in the Constitution. But it is settled beyond doubt that the pronouncements of a high court have the same authority within the state as those of the Supreme Court have throughout India. This report had given some recommendations on how to resolve a question of law concerning a central law if another high court has already decided upon it. This has been discussed in the concluding part of this article.

So, when the apex court states that a central law can be challenged before a high court, one wonders what implication would the final judgement of that high court be? If the law is declared unconstitutional by one high court will it have to be followed by other states and high courts as well? The Constitution under Article 215 states that a High Court is a court of record which means that the decision of one high court will be binding upon lower courts within its territorial jurisdiction.

Hence, the only probable explanation to application of a judgment deciding constitutionality of central law by a high court, is that the Supreme Court will have to decide upon it. It has happened so in the past. There was a conflict of decision on interpretation of term “full owner” under section 14(1) of the Hindu Succession Act, 1956. Due to difference in interpretation of high courts, in an identical fact situation, a Hindu widow who inherited property in Orissa or Andhra Pradesh would be a limited owner but if she inherited property in Madras, Punjab, Bombay or Gujarat, she would become absolute owner; this was owing to the differing interpretations given by the high courts in these states. This lack of uniformity was finally resolved by the Supreme Court after 25 years of this confusion having arisen in the first place.

The high courts, although, have assumed that a judgment of a high court on constitutional validity of central law will be binding throughout India. The root cause of this common inference is the apex court judgment in Kusum Ingots & Alloys Ltd. v. Union of India [(2004) 6 SCC 254]. The apex court had stated thus,

'22. The Court must have the requisite territorial jurisdiction. An order passed on a writ petition questioning the constitutionality of a parliamentary Act, whether interim or final keeping in view the provisions contained in clause (2) of Article 226 of the Constitution of India, will have effect throughout the territory of India subject of course to the applicability of the Act.'

This is clearly the obiter dictum part of the judgment which in literal sense means, ‘that which is said in passing’. As per Cornell University’s Legal information Institute, obiter dictum is A comment, suggestion, or observation made by a judge in an opinion that is not necessary to resolve the case, and as such, it is not legally binding on other courts.

This is so because Article 226(1) of Indian Constitution specifically states that the power of High Courts is to be exercised within the territorial jurisdiction of the court and hence, to say that the pronouncement of one high court is binding throughout the country contravenes this constitutional provision.

The obiter dicta in Kusum Ingots is being read into by all High Courts because a Supreme court’s judgment is binding on all courts and becomes a precedent and so does the obiter dicta part of the judgment.

In Naz Foundation v. Government of NCT of Delhi and Others Delhi High Court had dealt with section 377 of the Indian Penal Code; a legal instrument that governs the criminal justice system in the whole of India. The high court had, inter alia, held that “Section 377 IPC, insofar as it criminalizes consensual sexual acts of adults in private, is violative of Articles 21, 14 and 15 of the Constitution”. The territorial extent of the application of this decision was not spelt out but the court stated that its interpretation shall stand till the parliament decides to act on the issue.

A high court’s decision cannot be binding upon other high courts, at the most it could have persuasive significance, i.e. it can be considered by another high court while making a decision but it is not mandated to follow it. Hence, the efficacy of letting a high court decide upon constitutional validity of a central law remains questionable and puts uniformity of law in the “Union of India” in danger. It might have to be ultimately decided by the Supreme Court, which means the litigator would rather approach the Supreme Court first, to get a final and binding judgment.

In another instance, the Delhi High Court is hearing a plea seeking registration of marriage of same sex couples under the Hindu Marriage Act, which is a central legislation. Although this is not a question of constitutional validity of any legal provision but if the court orders that same sex marriages be allowed to be registered under the central law that governs the whole of India, will the same be considered to be applicable throughout? Will a marriage registrar in Maharashtra follow the decision of the Delhi High Court? These questions remain unanswered.

The question of applicability of a central law being declared unconstitutional or invalid by a high court is still something that remains to be definitively decided by the apex court. The Law Commission of India 136th report recommended that if a High Court is faced with a problem pertaining to a central law on which another high court has already made a pronouncement and if the high court holds a different view then it shall make a reference to the Supreme Court to that regard along with a reasoned opinion of its own view. While this may seem like a viable legal recourse, the same has not been applied in the jurisprudence yet despite the report having been released three decades ago.

Related:

SC refuses to entertain plea challenging Epidemic Act

Delhi HC issues notice to Union in a plea to recognise same sex marriage

 

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Tablighi Case: HC condition restricting entry to India for 10 years, not to be considered in future says SC

The court said the visa applications of the petitioner and 8 other nationals will be considered on merit

20 Nov 2020

Image Courtesy:livelaw.in

The Supreme Court clarified that the condition imposed on foreign nationals by the Karnataka High Court to not enter the country for the next 10 years will not be considered while deciding any future applications for visa for travel to India.

A bench comprising Justices S Abdul Nazeer and Sanjiv Khanna held, “We clarify that in case the appellant and 8 other similarly situated persons apply for visa to visit India, the application(s) would be considered on merits without being influenced by the directions given in paragraph (i) of the impugned judgment dated 13.10.2020 and the affidavit/undertaking filed by the appellant and 8 others.”

The petitioner is a Kyrgyzstan national and was arrested for violating visa conditions and hence was booked for violating the Foreigners Act, 1946. The petitioner and other similarly placed appellants had moved the Karnataka High Court for quashing of the FIR against them. A single judge bench of the high court vide an order dated October 13, 2020, quashed criminal proceedings against them and directed the state to make necessary arrangement or issuance of exit permits to them. While the court quashed proceedings against them, the court did so, with a condition that they would not return to India for another 10 years. The court required them to even submit an undertaking to that effect, apart from paying a fine.

The apex court left open the question whether the decision in Crl.P. No. 6578/2019 of Karnataka High Court would apply to foreigners who enter India with valid passport and valid visa. This decision of the high court was pertaining to how to deal with mainly illegal migrants who commit offence in India.

The Supreme Court order may be read here.

Related:

Tablighi Jamaat: K’taka HC conditionally quashes criminal cases against 9 foreigners
Mumbai court acquits 20 Tablighi Jamaat members
Tablighi Jamaat case: Bandra Court discharges 12 foreign nationals 

Tablighi Case: HC condition restricting entry to India for 10 years, not to be considered in future says SC

The court said the visa applications of the petitioner and 8 other nationals will be considered on merit

Image Courtesy:livelaw.in

The Supreme Court clarified that the condition imposed on foreign nationals by the Karnataka High Court to not enter the country for the next 10 years will not be considered while deciding any future applications for visa for travel to India.

A bench comprising Justices S Abdul Nazeer and Sanjiv Khanna held, “We clarify that in case the appellant and 8 other similarly situated persons apply for visa to visit India, the application(s) would be considered on merits without being influenced by the directions given in paragraph (i) of the impugned judgment dated 13.10.2020 and the affidavit/undertaking filed by the appellant and 8 others.”

The petitioner is a Kyrgyzstan national and was arrested for violating visa conditions and hence was booked for violating the Foreigners Act, 1946. The petitioner and other similarly placed appellants had moved the Karnataka High Court for quashing of the FIR against them. A single judge bench of the high court vide an order dated October 13, 2020, quashed criminal proceedings against them and directed the state to make necessary arrangement or issuance of exit permits to them. While the court quashed proceedings against them, the court did so, with a condition that they would not return to India for another 10 years. The court required them to even submit an undertaking to that effect, apart from paying a fine.

The apex court left open the question whether the decision in Crl.P. No. 6578/2019 of Karnataka High Court would apply to foreigners who enter India with valid passport and valid visa. This decision of the high court was pertaining to how to deal with mainly illegal migrants who commit offence in India.

The Supreme Court order may be read here.

Related:

Tablighi Jamaat: K’taka HC conditionally quashes criminal cases against 9 foreigners
Mumbai court acquits 20 Tablighi Jamaat members
Tablighi Jamaat case: Bandra Court discharges 12 foreign nationals 

Related Articles


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