Case BriefsTribunals/Commissions/Regulatory Bodies

National Human Rights Commission: NHRC has taken suo motu cognizance of a media report that a six year old girl, studying in a government school in Delhi, has been allegedly raped by a person working as an electrician with the school around 1.30 P.M. on the 8th August, 2017.

The Commission has observed that the contents of the news report, if true, amount to violation of human rights of the victim. Accordingly, it has issued notices to the Chief Secretary, Government of NCT of Delhi and the Commissioner of Police, Delhi calling for a detailed report in the matter within four weeks. The Chief Secretary is expected to inform whether all the guidelines/directions issued by the authorities for the safety of the students are being followed by the schools in Delhi. The Commission has also observed that the incident is reported to have happened in a government school. Being the custodian of the students, the school authorities are responsible for the safety and security of its students, especially the girl students. Prima Facie the incident indicates towards negligence by the school administration.

The NHRC also feels that there should be a State Human Rights Commission in Delhi to deal with such cases of alleged violation of human rights. However, till it comes into existence, it would continue addressing the issues pertaining to the NCT of Delhi. According to the media report, carried on the 10th August, 2018, the incident took place when the victim girl was about to return home, but she was stopped by the accused. The accused also allegedly warned the victim not to tell it to anyone. The victim was medically examined and the reports confirmed that she has been subjected to rape. An FIR in the matter has been registered by the police and the accused has been arrested.

National Human Rights Commission

Conference/Seminars/LecturesLaw School News

Law Mantra is organising a one Day International Seminar on Human Rights & Persons with Disabilities, on 2nd December, 2018 at the Indian Law Institute, New Delhi in academic collaboration with CASIHR (Rajiv Gandhi National University of Law, Punjab), Maharashtra National Law University, Nagpur & International Council of Jurists, London.

Chief Patron: Justice Deepak Verma, Former Judge, Supreme Court of India

Patron: Prof.(Dr.) Paramjit S. Jaswal, Vice-Chancellor, Rajiv Gandhi National University of Law, Punjab.

             Prof. (Dr.) Vijender Kumar, Vice-Chancellor, Maharashtra National Law University, Nagpur.

Date: 2nd December, 2018

Venue: Indian Law Institute, Bhagwan Dass Road, New Delhi.

About Law Mantra

“Law Mantra” (headquarters New Delhi) (Registration No 150 in Book No. 4 Vol. No. 3, 603 0f 2018) is not for profit organisation running for the purpose of enhancing legal academics and legal awareness in the society and in the practice of the same. “Law Mantra” is a body of Jurists, Advocates, Academicians and Students running for the purpose of enhancing legal academics and legal awareness in the society and in the practice of the same. We at Law Mantra enable people to take responsibility for the situation of the deprived Indian women and children and so motivate them to seek resolution through individual and collective action thereby enabling women and children to realize their full potential.

Human Rights & Persons with Disabilities

The great German Philosopher Immanuel Kant has quoted that human beings are rational beings, therefore worthy of dignity and respect. Every individual has the basic right to live a dignified life and to exercise his freedoms and choices. The same phrase is equally applicable to persons with disabilities. But despite of this fact, persons with disabilities are subjected to discrimination. The one major factor of such discrimination is stigmatized societal attitude.

A mechanism of social integration of persons with disabilities has been made by following different international conventions and documents. Now world has joined to consider disability jurisprudence as an inseparable part of the international law. Universal Declaration of Human Rights and the Declaration on the Rights of Disabled Persons and Convention on the Rights of Persons with Disabilities are few important documents justifying the aforementioned proposition.

In a recent report of WHO, an estimated 10% of the world’s population –approximately 650 million people, of which 200 million are children, experiences some form of disability. The number of people with disabilities is growing as a result of different factors including population growth, ageing and medical advances that preserve and prolong life.

Across the world, people with disabilities have poorer health outcomes, lower education achievements, less economic participation and higher rates of poverty than people without disabilities. This is partly because people with disabilities are facing barriers in accessing services that many of us have long taken for granted. These services mainly include health, education, employment, transport and information. These difficulties are exacerbated in less advantaged communities.

To achieve the long-lasting, vastly better development prospects that also lie at the heart of the 2015 Millennium Development Goals and beyond, we must empower people living with disabilities and remove the barriers which prevent them participating in their communities; getting a quality education, finding decent work, and having their voices heard.

People with disabilities report seeking more health care then people with without disabilities and have greater unmet needs. For example a recent survey of people with serious mental illness showed that between 35% and 50% of people in developed countries and between 76% and 85% in developing countries received no treatment in the year prior to study. Health promotion and prevention activities seldom target people with disabilities. For example women with disabilities receives less screening for breast and cervical cancer than women without disabilities. People with intellectual disabilities are less likely to have their weight checked. Adolescents and adults with disabilities are more likely to be excluded from sex education programs. These factors from world report on disability by World Health Organization clearly indicates that there is need to work at the ground level so that persons with disabilities can enjoy their human rights without any difference from others.

The present seminar is aiming at highlighting different issues underlining disability jurisprudence from human rights perspective. We welcome different stakeholders including persons with disabilities, disability law activists, academicians, researchers, lawyers, medical professionals and bureaucrats.  This seminar is a noble initiation of Law Mantra in association with RGNUL Punjab through its Research Centre for Advanced Studies in Human Rights, upcoming Centre for Disability Studies and Health Laws and MNLU, Nagpur. We are considering this seminar as a platform to initiate a RIGHT discourse, expecting thought provoking, multidisciplinary, quality research papers.

Themes for Seminar

  • Social Integration and Challenges
  • Human Rights of women, children & sex workers
  • Discrimination and Human Rights violation
  • The role of National Human Right Commission in promotion and protection of Human Right
  • Human Rights of Indigenous people
  • Mob Lynching and Vigilantism
  • Conflict between IPR/Business Law and Human Rights
  • Disability as a Social Impairment
  • Social Model of Disabilities and Human Rights
  • Disability and Human Rights: Legal Framework
  • International Humanitarian Law and Rights of Persons with Disabilities
  • Healthcare and Disability
  • Medical Professionals and Interaction with Persons with Disabilities
  • Reproductive Rights of Women with Disabilities: International Human Rights Perspective
  • Right to Education and Persons with Disabilities
  • Right to Employment and Disability
  • Healthcare and Treatment of Persons with Disabilities: A Issue of Consent
  • Healthcare and Privacy Issues related to Persons with Disabilities
  • Comparative study on Disability Laws and Policies
  • Indian Laws and UNCRPD: Future of Disability Laws

Note: These Themes are not exhaustive; Authors are open to work on any topic related to above-mentioned theme.

Procedure for Submission of Abstracts: Abstract (of about 250 words) should be sent as an attachment in a word file. Abstracts will be peer reviewed before they are accepted. The following information, in the given format, should be send along with the Abstract:

  • Name of the Participant
  • Official Designation/Institution Details
  • Address and Email id
  • Title of Abstract
  • Abstract

The subject line of Email should read as: ‘Abstract Submission for International Seminar on Human Rights & Persons with Disabilities”.

Guidelines for Paper Submission

  • The title of the paper should be followed by Name, Designation, Name of the Organization / University / Institution and Email address. It is mandatory to mention Email address, as all future correspondence will be through it.
  • Name and details of Co-author, if any.
  • The paper should be typed in MS WORD format (preferably 2007 or 2010).
  • The paper must be in single column lay out with margins justified on both sides.
  • The sub heading should be in font size 12, bold and Times New Roman, left aligned.
  • The main text should be in font size 12, Normal, Times New Roman, 1.5 spacing and Justified.
  • The length of paper should not exceed 6,000 words (including footnotes). Exceeding the word limit may lead to rejection of paper.
  • All references must be in the form of footnotes with font size 10 and should be according to the Bluebook 19th Edition.

Publication Opportunity: All papers accepted for the conference will be published in UGC Referred Book bearing ISBN, CASIHR Journal on Human Rights Practice (JHRP) by RGNUL, Contemporary Law and Policy Review – NLU Nagpur, International Journal of Legal Research and Governance and Law Mantra Journal. (If Selected for Publication in UGC Referred Book bearing ISBN, Publication Charge will be Extra as Per bill of Publication House).

REGISTRATION FEE FOR PRESENTATION OF PAPER
Students Rs 1500/-
Faculties/Professionals/Research Scholars/Others Rs 2000/-
Presentation in Absentia for Students Rs 2000/-
Presentation in Absentia Faculties/Professionals/Research Scholars/Others Rs 2500/-
REGISTRATION FEE FOR ATTENDING THE SEMINAR
Students Rs 800/-
Faculties/Professionals/Research Scholars/Others Rs 1200/-
IMPORTANT DATE
Submission of Abstract 25th September, 2018
Confirmation of abstract selection 30th September, 2018
Registration 20th October, 2018
Submission of Full paper 27th November, 2018
Seminar Date 2nd  December, 2018

Who Should Attend?

Students, Research Scholars/Faculties/Academicians, Disability Rights Activist, Corporate Delegates, Business entities, Lawyers.

Rules for the Participants:

  • No abstract or full paper shall be accepted after the last date of submission respectively.
  • Participants/Paper Presenters have to register after the acceptance of abstract with payment of required fees.
  • For participation, registration is mandatory on confirmation of the participation. Only registered participants will be allowed to take part in Conference.
  • All the registered participants will be provided a participation certificate, conference kit, lunch and tea.

Note: The authors and co-authors both have register separately. The registration fee includes conference kit, lunch, High Tea, entry to all Technical session, and Certificates.

Eastern Book Company and SCC Online are proud to associate as Law School Partners. Please mention SCC Online Blog as reference.

Registration: Submit your abstract to editor.lawmantra@gmail.com with Subject line ‘Human Rights & Persons with Disabilities”.

Contact: For any queries, feel free to drop email to editor.lawmantra@gmail.com  Human Rights & Persons with Disabilities  or call on +91- 9310053923, +91-9667822453.

To view the Brochure, click HERE

Website: www.lawmatra.co.in

www.lawmantra.org

Conference/Seminars/LecturesLaw School News

Knowledge Steez along with Youth for Human Rights, Nepal brings to you Winter School on Human Rights 2018 taking place at Hotel Thamel Park, Kathmandu, Nepal from 24th December 2018- 29th December 2018.

Participation: We at Knowledge Steez invite all the ardent Students, Professors, Faculty Members, Human Right Activists and anyone anxious to learn about Human Rights.

Early Registration (before 30th September 2018)

  • Delegates from India; 12000 INR
  • Delegates from India (with accommodation); 18000 IN
  • Delegates from Nepal (without accommodation); 14000 NPR
  • Delegates from Nepal (with accommodation); 22000 NPR
  • Other Delegates; 200 USD (without accommodation) and 300 USD (with accommodation)

Registration Fee (after 30th September 2018)

  • Delegates from India; 14000 INR
  • Delegates from India (with accommodation); 20000 INR
  • Delegates from Nepal (without accommodation); 16000 NPR
  • Delegates from Nepal (with accommodation); 24000 NPR
  • Other Delegates; 200 USD (without accommodation) and 350

Mode of payment

Wire Transfer:

Recipient:

Bank Name: Mega Bank Nepal ltd.

Address: New Road Branch, Kathmandu, Nepal

Swift Code: MBNLNPKA

Account Name: Youth for Human Right, Nepal

Account No.:0100010102086

Western Union/Moneygram/IME:

Recipient Name: Rahul KC

Address: Kathmandu, Nepal, Contact: +977 9851189599

Kindly mail the receipt at winterschoolnepal2018@gmail.com

Instructions:

  • Accommodations not be provided to all participants. Only those who opt for accommodation will be provided with accommodation.
  • The organizers will only provide a letter for VISA purposes. Apart from this, the organizers will not take any responsibility for VISA of the participant.
  • Accommodation will be provided on twin sharing basis.
  • The registration fee will not include transportation (local, international).
  • It is advisable for participants to have health Insurance Policy

Refund of Registration fee: In case an applicant wants to withdraw his/her application, (in such a case, 70% of the application fee will be refunded back) (in case refund application is given before 30th November) and if the refund application is made after 30th November then no refund will be made to such an applicant.

What’s special: The Winter School will act as a platform for Delegates from various countries to come forward and learn about Protection and Enforcement of Human Rights in their respective countries. The content for the subject is developed by the experts of Human Rights and the content has been developed keeping in mind the needs and circumstances of different countries. The Delegates will also get an opportunity to discuss the situation prevailing in the country and can at the same time suggest the appropriate solution to others.

Contact us: Phone: 7782044252 | Email: winterschoolnepal2018@gmail.com  | Web: www.knowledgesteez.com

Law School NewsOthers

The admissions for Diploma in Human Rights & Laws will commence from 17th July 2018. Last date for applying is 30th July 2018. Interested students can register themselves online through Net Banking, Credit Card, SBI Branch (Cash Deposit). Admission will be confirmed on payment of the fees.

Number of seats : 50

Fees :

1. Rs 10000 + 18% GST = Rs 11800/- ( Current ILS students )

2. Rs 12000 + 18% GST = Rs 14160/- (Non ILS including ex-students of ILS)

Class timings and days : Every Tuesday and Wednesday 8.00 am to 10.00 a.m.

Course Co-ordinator: Dr Sita Bhatia.

The lectures will begin from 31st July at 8.00 a.m.

Course contents:

Module I:      Theoretical/ Philosophical /jurisprudential Approach

Module II:     International & Regional Human Rights Approach

Module III:   Human Rights under Domestic Laws and case laws

Module IV:   Judiciary and Human rights

Module V:     Human Rights of various vulnerable persons and groups

Module VI:   Study of various commissions on Human Rights

Module VII: a) Media & human rights

b) Public Participation & human rights

c) NGOs & INGOs and human rights

Module VIII:   Humanitarian Laws

a) Human Rights & Development

b) Human Rights & Right to self determination

Module IX:  Project/Dissertations on various Human Rights topics/issues

Module X:   Practical and Legal Training

Duration:  2 semesters

Eligibility: 1.  II, III, IV and V year BSL LLB or

    2. .All years of Three Year Law Course (LL.B.) or

    3. Graduation in any faculty

Seats: Minimum 20; Maximum 40

Classes: Tuesday & Wednesday (1.30 p.m. to 3.30 p.m.)

Assessment Pattern:  Written examination   50 marks

  Viva-voce                      20 marks

  Dissertation                  30 marks

   Total                             100 marks

Case BriefsSupreme Court

Supreme Court: Terming the Hadiya case as the perfect example of “patriarchal autocracy and possibly self ­obsession with the feeling that a female is a chattel”, the 3-judge bench of Dipak Misra, CJ and AM Khanwilkar and Dr. DY Chandrachud, JJ set aside the Kerala High Court verdict and held that the High Court has completely erred by taking upon itself the burden of annulling the marriage between two consenting adults, namely, Hadiya and Shafin Jahan.

Below are the important facts of the case:

  • 24-year-old Akhila alias Hadiya, had converted to Islam after staying with 2 of her friends, Jaseena and Faseena, while completing her Bachelor of Homeopathic Medicine and Surgery (BHMS) degree.
  • Hadiya refused to return to her father Asokan’s place after he filed a writ of habeas corpus before Kerala High Court in January, 2016 on the apprehension that his daughter was likely to be transported out of the country.
  • Hadiya continued to stay at the house of her aforementioned friends. She expressed her desire to complete her House   Surgeoncy   at  the  Shivaraj Homeopathic   Medical   College, Salem which has a hostel for women   where   she   was   willing   to   reside   for   the   purpose   of completing her House Surgeoncy.
  • On 21.12.2016, Hadiya appeared before the High Court and a statement was made that she had entered into marriage with Shafin Jahan. High Court noted that the marriage was totally unexpected.
  • High Court in the impugned judgment held that a girl aged 24 years is weak and vulnerable and capable   of   being   exploited   in   many ways and thereafter, the Court, exercising the parens patriae jurisdiction, observed that it was concerned with the welfare of the girl of her age and hence, the custody of Akhila alias Hadiya should be given to her parents.

The Kerala High Court allowed her to complete her studies but held:

“Her marriage being the most important decision in her life, can also be taken only with the active involvement of her parents. The marriage which is alleged to have been performed is a sham and is of no consequence in the eye of law.”

CJI, writing for himself and Khanwilkar, J, held that non­-acceptance of Hadiya’s choice would simply mean creating discomfort to the constitutional right by a Constitutional Court which is meant to be the protector of fundamental rights. Such a situation cannot remotely be conceived.

He wrote:

“The exposé of facts in the present case depicts that story giving it a colour of different narrative. It is different since the State that is expected to facilitate the enjoyment of legal rights of a citizen has also supported the cause of a father, an obstinate one, who has endeavoured immensely in not allowing his daughter to make her own choice in adhering to a faith and further making Everestine effort to garrotte her desire to live with the man with whom she has entered into wedlock.”

Chandrachud, J also came down heavily upon the Kerala High Court for following an erroneous approach and writing down a separate but concurring judgment, said:

“The schism between Hadiya and her father may be unfortunate. But it was no part of the jurisdiction of the High Court to decide what it considered to be a ‘just’ way of life or ‘correct’ course of living for Hadiya. She has absolute autonomy over her person. Hadiya appeared before the High Court and stated that she was not under illegal confinement. There was no warrant for the High Court to proceed further in the exercise of its jurisdiction under Article 226.”

The Court, however, permitted the National Investigation Agency (NIA) to continue the investigation in respect of any matter of criminality. However, the validity of the marriage between Shafin Jahan and Hadiya shall not form the subject matter of the investigation. The Court made it clear that “nothing contained in the interim order of this Court will be construed as empowering the investigating agency to interfere in the lives which the young couple seeks to lead as law abiding citizens.”

The Court had passed the operative order in the present matter on 08.03.2018.

[Shafin Jahan v. Asokan K.M.,  2018 SCC OnLine SC 343, decided on 09.04.2018]

Hot Off The PressNews

Supreme Court: The Bench of Dipak Misra, CJ and AM Khanwilkar and Dr. DY Chandrachud, JJ asked the Central government to file a comprehensive status report, giving details on the condition of Rohingya camps in Haryana, Jammu and Kashmir and Delhi-NCR after Senior advocate Colin Gonsalves submitted before the Court that the conditions at the Rohingya camps are “unhygienic and pathetic”.

Colin Gonsalves, appearing for one of the petitioners, told the Court that the refugees had no access to clean sanitation facilities such as toilets and clean drinking water, that was leading to their deaths and that  the Centre and the states, hosting these refugees, should be asked to provide better hygienic facilities at these camps.

The Rohingya immigrants, who fled to India after violence in the Rakhine state of Myanmar, have settled in Jammu, Hyderabad, Haryana, Uttar Pradesh, Delhi-NCR and Rajasthan. More than 600,000 refugees are languishing in Bangladeshi refugee camps after fleeing a brutal Myanmar army campaign launched in August last year.

Source: ANI

OP. ED.

Indian judiciary has taken up a much-needed active role in the policies of the nation. Rather than being silent spectators to the policies or passive onlookers to lack thereof, Indian judiciary has rightly protected the citizens by judicial activism. Indian courts are not finding opportunities for judicial activism, adventurism or overreach but are compelled to do so because of legislative and executive inaction that deprive citizens of the basic freedom i.e. right to life, right to breathe clean air, right to proper livelihood, right to sleep, etc. guaranteed by Article 21. One of the most prominent developments from judicial activism has been in environmental jurisprudence. The lack of proper policies, incompetency to implement laws and absence of capable authorities has compelled courts to overstep their power, rightfully so in many environment cases, where the Government and public authorities have failed to take appropriate steps and ensure the safety and peace of mind of citizens guaranteed by the Constitution.

A country riddled with power, poverty and pelf, with the legislature and executive in the nucleus of it, it is imperative for judiciary, an authoritative independent unbiased body, to guarantee human rights to citizens. Kesavananda Bharati[1], Maneka Gandhi[2] and S.P. Gupta[3] has opened floodgates for judicial activism. In Kesavananda Bharati[4] CJI Sikri authored the basic feature doctrine that till date remains the bedrock of the Indian Constitution. Maneka Gandhi[5] vested power with the Court to adjudge if a particular action, matter, policy or even law was just, fair and moral. The Indian Court is vested with the power of judicial review under Articles 32 and 226 with the aid of writs and public interest litigation (PIL), the Supreme Court and the High Court have been able to deal with series of public grievances and flagrant basic human right violations by the State.

In Municipal Council, Ratlam v. Vardichan[6], Court held that it was compelled to overstep its power because of the “callous public bodies habituated to deleterious inaction[7]”. Inaction by municipal authorities to eliminate stink and stench of open drains, forced the Court, while upholding Article 21— right to life, to order municipal authorities to take immediate actions to provide basic amenities to residents and construct sufficient drains and provide water supply. In Goa Foundation v. Konkan Railway Corpn.[8], the Court while noting that although the Government was not powerless to act but just chose not to, ordered the lethargic Government to take action against pollution caused by mines. In M.C. Mehta v. State of Orissa[9], the Court while upholding Article 21 — right to life, established a law of “polluter pays” and “absolute liability”, when State functionaries failed to take appropriate measures and eradicate problems of proper dumping of waste materials. In 2005, because of the absence of appropriate action taken by the Government, the Court ordered a complete ban on sound emitting firecrackers from 10 p.m. to 6 a.m. in the light of Article 21— right to life[10]. Seeing the soaring air pollution rate during Diwali in the previous year, in 2017, the Court, upholding Article 21 — right to breathe clean air and noting “the response of the Government [being] lethargic with the absence of any keenness to take proactive steps[11]”, ordered ban on the sale of firecrackers because of Governments incompetence to issue necessary directions. In each of such judgments, the judiciary has rightfully overstepped its powers only because of the legislatures and executives inaction to ensure the basic right to life to its citizens.

Surely, even after the much-needed orders passed by the courts in such gross violations of human rights, the judiciary’s competence to act outside its scope remains a point of contention as it defeats the doctrine of separation of powers. At the same time, courts are supposed to and entitled to exceed its scope of its mandate to protect interests of the public to fill the voids left by the legislature and the executive[12]. The judiciary inherently is the sentinel qui vive — watchdogs on the lookout[13]. Courts have rightly viewed human rights and environmental protection on the same footing and while acting as the guardian of fundamental rights has protected the right of each individual in regard to environment under Article 21. It is contended that judiciary is not a competent body in such cases as it is not a representative body. Justice A.K. Goel, while striking down National Judicial Appointments Commission (NJAC), held that “even if the judiciary is not an elected body today, it discharges constitutional functions as per the will of the people reflected in the Constitution and the task determining the powers of various Constitutional organs is entrusted to the judiciary”[14]. It is well established that the judiciary is the watchdog of the nation and it ought to/should overstep its boundaries to maintain safety, peace and order. The courts are rightly entitled to participate actively in the welfare and betterment of the society and impose rules and regulations be it in cases of environmental degradation[15], custodial violence[16], education reforms[17], corruption in private organisations[18], illegal slaughter[19], sexual harassment[20], etc. to ensure right to life to citizens guaranteed by Article 21 that is infringed or overlooked by the incompetence and inaction of responsible authorities.

 

*Manavendra Gupta, Member, Young ICCA (International Council for Commercial Arbitration); LL.B., O.P.Jindal Global University (Class of 2019); B.A., Political Science and Economics, UMass Amherst (Class of 2016)

[1]  Kesavananda Bharati v. Union of India, (1973) 4 SCC 225.

[2]  Maneka Gandhi v. Union of India, (1978) 1 SCC 248.

[3]  S.P. Gupta v. Union of India, 1981 Supp SCC 87.

[4]  (1973) 4 SCC 225.

[5]  (1978) 1 SCC 248.

[6]  (1980) 4 SCC 162 : AIR 1980 SC 1622.

[7]  Ibid.

[8]  1992 SCC OnLine Bom 205 : AIR 1992 Bom 471.

[9]  1992 SCC OnLine Ori 19 : AIR 1992 Ori 225.

[10]  Noise Pollution  (V), In re, (2005) 5 SCC 733.

[11]  Arjun Gopal v. Union of India2017 SCC OnLine SC 1071, para 58.

[12]  Sathe S.P., Judicial Activism in India, Oxford University Press, 2003.

[13]  Nariman Fali, V.R. Krishna Iyer Memorial Lecture Series — The Super Judge, 2016.

[14]  Supreme Court Advocates-on-Record Assn. v. Union of India, A.K. Goel J., (2016) 5 SCC 1, 723, para 1070.

[15]  Arjun Gopal v. Union of India, 2017 SCC OnLine SC 1071 .

[16]  Nilabti Behera v. State of Orrisa, (1993) 2 SCC 746 (Ss. 41-A, 41-B, 41-C, 41-D of CrPC).

[17]  Christian Medical College v. Union of India, (2014) 2 SCC 305.

[18]  Board of Control for Cricket in India v. Cricket Assn. of Bihar, (2017) 2 SCC 333.

[19]  K. Ragu Rama Krishna Raju v. State of A.P., (2015) 3 SCC 550.

[20]  Vishaka v. State of Rajasthan, (1997) 6 SCC 241.

Case BriefsTribunals/Commissions/Regulatory Bodies

National Human Rights Commission: NHRC has taken suo motu cognizance of media reports about the killing of an alleged gangster, Sumit Gurjar, in an encounter by police in Greater NOIDA, Gautam Budh Nagar, Uttar Pradesh on 3rd October, 2017. It has issued notices to the Chief Secretary and the Director General of Police, Uttar Pradesh and calling for a report in the matter within four weeks.

Reportedly, the family members of the deceased have alleged that he was killed in a staged encounter after police had picked up him from a market. They along with villagers protested against the police action near the mortuary at Sector- 94 of NOIDA and also blocked the traffic at Mahamaya Flyover for about 45 minutes.

The Commission has observed that the allegations leveled by the family members and the villagers, if true, raise serious issue of violation of human rights of the deceased and the aggrieved family. Elimination of a criminal in such an unlawful manner can never send a good message to a civilized society. As has been emphasized time and again, the police do not have a right to take away life of a human being. It is not the lawful way to deal with the criminals.

The Commission has already issued guidelines to deal with the matter relating to deaths in police encounter which have been circulated vide a letter dated 12th May, 2010 written by the Chairperson, NHRC to the Chief Ministers of all States and the Union Territories.

According to the media reports, the deceased Sumit Gurjar was wanted in a case of double murder and robbery. He had been taken into custody by the Noida police but no satisfactory answer was given by the police officers. It was only when the television broke the news that his family members came to know about his encounter.

Reportedly, the police authorities have denied the allegations of a fake encounter. The personnel of Kasna and Bisrakh police stations have claimed that the deceased was shot dead in an encounter in which his three accomplices managed to escape. According to the Senior Superintendent of Police, Gautam Budh Nagar, a fair investigation into the matter will be conducted.

National Human Rights Commission

Case BriefsSupreme Court

Supreme Court: In the case where 2 Rohingya Muslim refugees, Mohammad Sallimullah and Mohammad Shakir, urged the Supreme Court to direct the Central government not to deport them to Myanmar as they would face certain death on being deported to Myanmar, the 3-judge bench of Dipak Misra, CJ and AM Khanwilkar and Dr. DY Chandrachud, JJ listed the matter for further hearing on 21.11.2017. The Court said:

“As the hearing is likely to take some time, we intend to devote certain clear days for the purpose of hearing.”

Though the order of the Court does not expressly say anything on the deportation of the Rohingya Muslims, the Central Government will not be able to deport them till the next date of hearing. Fali S. Nariman, appearing for petitioners had submitted before the Court that he will approach the Court in case of any contingency.

The Court had said during the hearing that the matter was of great magnitude and hence, it will have to strike a balance between National Security and the human rights of the women and children.

Earlier, Centre had argued before the Court that more than 40,000 Rohingya Muslims have illegally migrated to India by using the porous border between India and Mayanmar and as per the reports of the Security agencies, some of the Rohingya Muslims have links with the Pak terror groups. It was also argued before the Court that some illegal immigrants have obtained fake Indian identities and are involved in serious crimes like Human Trafficking and mobilisation of funds  by way of Hundi and Hawala Channels. [Mohammad Salimullah v. Union of India, Writ Petition (Civil) No.793/2017, order dated 13.10.2017]

[With inputs from ANI]

Hot Off The PressNews

Supreme Court: In the plea seeking replacement of death by hanging, the Supreme Court has asked the Central Government to give a detailed response within 3 months on whether the Legislature can consider any mode other than hanging for the death convicts.

The Court said that the Constitution of India is compassionate and recognises the sanctity of life and hence, with the invention of various modes in modern time, legislature can think of other mode for death convicts, keeping in view the dynamic progress in science.

Source: ANI

Hot Off The PressNews

Supreme Court: In the case where the Court had sought detailed response from Central Government after 2 Rohingya Muslim refugees, Mohammad Sallimullah and Mohammad Shakir, urged the Supreme Court to direct the Central government not to deport them to Myanmar as they would face certain death on being deported to Myanmar, the Centre urged the Court to refuse to interfere in the matter and let the Government take a policy decision as there is serious threat to National security is the illegal immigrants from Mayanmar are allowed to stay in India.

It was Centre’s case that more than 40,000 Rohingya Muslims have illegally migrated to India by using the porous border between India and Mayanmar and as per the reports of the Security agencies, some of the Rohingya Muslims have links with the Pak terror groups. It was also argued before the Court that some illegal immigrants have obtained fake Indian identities and are involved in serious crimes like Human Trafficking and mobilisation of funds  by way of Hundi and Hawala Channels.

The 3-judge bench of Dipak Misra, CJ and AM Khanwilkar and Dr. DY Chandrachud, JJ has listed the matter on 03.10.2017.

Source: ANI

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In the case where the Court had sought detailed response from Central Government after 2 Rohingya Muslim refugees, Mohammad Sallimullah and Mohammad Shakir, urged the Supreme Court to direct the Central government not to deport them to Myanmar as they would face certain death on being deported to Myanmar, the Centre filed an affidavit with the Supreme Court stating that ‘Rohingyas are a threat to national security’.

Earlier,  advocate Prashant Bhushan, appearing for the petitioners, had asserted that deporting the petitioners would be unconstitutional as the Supreme Court had repeatedly ruled, as in the case of Chakma refugees, that it was the cardinal duty of the Union government to protect refugees who leave their own country because of persecution at the hands of State authorities. He also told the Court that approximately 40,000 Rohingya Muslims residing in India were registered with the UN High Commissioner for Refugees.

Source: ANI

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Supreme Court: After 2 Rohingya Muslim refugees urged the Supreme Court to direct the Central government not to deport them to Myanmar, the Court has sought a detailed response from the Centre. The petitioners, Mohammad Sallimullah and Mohammad Shakir, told the Court that they would face certain death on being deported to Myanmar.

Earlier, their advocate Prashant Bhushan asserted that deporting the petitioners would be unconstitutional as the Supreme Court had repeatedly ruled, as in the case of Chakma refugees, that it was the cardinal duty of the Union government to protect refugees who leave their own country because of persecution at the hands of State authorities. He also told the Court that approximately 40,000 Rohingya Muslims residing in India were registered with the UN High Commissioner for Refugees.

Source: ANI

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Supreme Court: In the matter where the National Human Rights Commission (NHRC) had sought direction to all states for mandatorily giving information to it about any encounter killings in their jurisdiction for the purposes of enquiry, the bench of Kurian Joseph and R. Banumathi, JJ referred the matter to a larger bench.

The NHRC, in its plea filed in 2014, has sought direction to state governments and police authorities that they should continue to provide the information asked for by it in accordance with the guidelines and provisions of the Protection of Human Rights Act, 1993, to probe the cases of encounter killings. It also sought direction to the state governments that they should not refuse to comply with the recommendations made by Commission. It had also argued that due to the Supreme Court verdict of 2014 by which certain guidelines were framed, its role in such enquiries has virtually been nullified. It had said that Section 12(a) of the Act makes it a mandatory obligation upon the NHRC to inquire on its own or on a petition presented to it by a victim, into the complaints of human rights violation by a public servant.

Senior advocate Gopal Subramaniam and advocate Shobha Gupta, appearing for the Commission, said it is a pure question of law as the Act provided for it to enquire on its own or on a petition presented to it by a victim or any person on his behalf into any complaint of violation of human rights by a public servant.

The Court said that a larger bench will look into the matter.

Source: PTI

Case BriefsSupreme Court

Supreme Court: In the petition where directions for the rehabilitation of the widows of Vrindavan were sought so as to bring them to a stage where they can live with dignity, the bench of Madan B. Lokur and Deepak Gupta, JJ formed a 6-member Committee to study the 18 reports filed by  the National Commission for Women, the Ministry of Women and Child Development and the State of Uttar Pradesh among others and formulate an action plan within two months and in any case on or before 30th November, 2017.

The petition was filed based on the article “White Shadows of Vrindavan’ written by Atul Sethi and published in the New Delhi edition of the Times of India of 25.03.2007, which highlighted the pathetic and shocking conditions of the widows living in Vrindavan – begging in temples and then huddling together in hovels. It mentioned that the widows congregate in some ashrams or temples where they sing bhajans and are paid about Rs. 18 per day for about 7 to 8 hours of singing and that they were spending the rest of their time begging on the streets. Many of them are too old to look after themselves requiring others to pool in their resources to look after them.

Various reports were submitted before the Court after a Social Justice Bench was constituted by the Chief Justice of India in 2015. Solicitor General also submitted an Action Plan on 18.07.2017. The Court said that the effort put in by all concerned in the reports should not go waste and it must be gainfully utilized, being in a sense a gold mine of pragmatic and workable suggestions. The Committee constituted by the Court includes:

  1. Suneeta Dhar of NGO Jagori,
  2. Meera Khanna of Guild for Service
  3. Abha Singhal Joshi, Lawyer and activist
  4. A nominee of HelpAge India, an NGO that has rendered valuable assistance in this case,
  5. A nominee of Sulabh International, an NGO that has rendered valuable assistance in this case,
  6. Aparajita Singh, a lawyer practising in this Court to provideany assistance on legal issues.

The Court noticed that all that widows in some parts of the country are socially deprived and to an extent ostracized and perhaps this is the reason why many of them choose to come to Vrindavan and other ashrams where, unfortunately, they are not treated with the dignity they deserve and it is important to give voice to these hapless widows. In order to follow-up on the Agreed Action Plan submitted by the Solicitor General, the Court will take up the matter on 09.10.2017. [Environment and Consumer Protection Foundation v. Union of India, 2017 SCC OnLine SC 916, decided on 11.08.2017]

 

Case BriefsSupreme Court

Supreme Court: In the writ petition seeking implementation of Disaster Management Act, 2005 as many States were not fully prepared to deal with a disaster and therefore necessary directions ought to be given by this Court for proper implementation of the Act, the Court said that it is absolutely necessary for the National Disaster Management Authority (NDMA) constituted at the national level and the State Disaster Management Authority at the State level to be ever vigilant and ensure that if any unfortunate disaster strikes there should be total preparedness and that minimum standards of relief are provided to all concerned.

The writ petition was filed after the unprecedented flood and landslide disaster that occurred in Uttarakhand in 2013 and it was alleged that the adverse impact of disaster could have been mitigated had there been effective implementation of the Disaster Management Act, 2005 and adequate preparedness by the State Government of Uttarakhand. The Court, hence, sought affidavits from Central and State Governments and after showing some laxity at first, the Union Government, on 25th February, 2016 sent a communication to the Chief Secretaries of all the States by the Joint Secretary (Policy and Plan) of the NDMA and asked them to frame minimum standards of relief for victims of disaster.

Regarding the obligation to establishment of an Advisory Committee, the bench of Madan B. Lokur and Deepak Gupta, JJ said that Section 17 of the Act does not make it mandatory and it is really for the State Disaster Management Authority to constitute one or more Advisory Committee as and when it becomes necessary to do so on different aspects of disaster management.

The NDMA also submitted that all States except Andhra Pradesh and Telangana have prepared a State Disaster Management Plan which is very much in place and that the District Disaster Management Authority has been constituted in every district under Section 25 of the Act and out of 684 districts in the country, a District Disaster Management Plan is in place in 615 districts while it is under process in the remaining districts.

Considering the above submissions by the NDMA, the Court noticed that there has been sufficient compliance with the provisions of the Act, however, it would be advisable for the NDMA to regularly publish its Annual Report to review and update all plans on the basis of experiences and to make its website multilingual so that all concerned may benefit. [Gaurav Kumar Bansal v. Union of India, 2017 SCC OnLine SC 550, decided on 08.05.2017]

Case BriefsSupreme Court

Supreme Court: Taking note of the rise in the crimes against children, the bench of Madan B. Lokur and Deepak Gupta, JJ said that the definition of the expression “child in need of care and protection” under Section 2(14) of the Juvenile Justice (Care and Protection of Children) Act, 2000  should not be interpreted as an exhaustive definition. The provisions of the Protection of Children from Sexual Offences Act, 2012 do not provide any definition of a child in need of care and protection. But no one can deny that a child victim of sexual abuse or sexual assault or sexual harassment is a child in need of care and protection. Similarly in a given case, a child accused of an offence and brought before the Juvenile Justice Board or any other authority might also be a child in need of care and protection.  The Court said that it would be unfortunate if certain categories of children are left out of the definition, even though they need as much care and protection as categories of children specifically enlisted in the definition.

The bench also gave elaborate directions in order to ensure the welfare of the children in need of care and protection, some of the important directions are as follows:

  • The Union Government and the governments of the States and Union Territories must ensure that the process of registration of all child care institutions is completed positively by 31.12.2017 with the entire data being confirmed and validated. Inspection Committees should also be set up on or before 31.07.2017 to conduct regular inspections of child care institutions and to prepare reports of such inspections.
  • The governments of the States and Union Territories should draw up plans for full and proper utilization of grants (along with expenditure statements) given by the Union Government under the Integrated Child Protection Scheme.
  • The schemes of the Government of India including skill development, vocational training etc must be taken advantage of for the rehabilitation and social re-integration of children in need of care and protection.
  • Individual child care plans are extremely important and all governments of the States and Union Territories must ensure that there is a child care plan in place for every child in each child care institution on or before 31.12.2017.
  • State and Union Territory Government must establish State Commission for Protection of Child Rights on or before 31.12.2017. The SCPCRs so constituted must publish an Annual Report so that everyone is aware of their activities and can contribute individually or collectively for the benefit of children in need of care and protection.
  • The process of conducting a social audit must be taken up in right earnestness by the National Commission for the Protection of Child Rights as well as by each State Commission for the Protection of Child Rights to bring transparency and accountability in the management.

Stating that every child in need of care and protection must not be placed in a child care institutions, the Court said that alternatives such as adoption and foster care need to be seriously considered by the concerned authorities. The Court said that a status report of the compliance of the aforementioned directions be submitted before the Court on or before 15.01.2018. [Re: Exploitation of Children in Orphanages in the State of Tamil Nadu v. Union of India, 2017 SCC OnLine SC 534, decided on 05.05.2017]

Case BriefsSupreme Court

Supreme Court: Pained by the sorrowful fate of a young girl who committed suicide as an outcome of the psychological harassment and continuous eve-teasing by the accused, the Court said that in a civilized society male chauvinism has no room. A woman has her own space as a man has. She enjoys as much equality under Article 14 of the Constitution as a man does. The right to live with dignity as guaranteed under Article 21 of the Constitution cannot be violated by indulging in obnoxious act of eve-teasing.

Stating that eve-teasing is causing harassment to women in educational institutions, public places, parks, railways stations and other public places which only go to show that requisite sense of respect for women has not been socially cultivated, the 3-judge bench of Dipak Misra, A.M. Khanwilkar and M.M. Shantanagouda, JJ said that why the women in this country cannot be allowed to live in peace and lead a life that is empowered with a dignity and freedom.

In the present case, where the trial court had acquitted the accused by disregarding the version of parents of the deceased and other witnesses and treating the dying declaration as invalid on the ground that the deceased was not in a position to speak and there was no medical certificate appended as regards her fitness as the deceased had sustained 80% burn injuries as she had set herself ablaze in an attempt to end her life, the Himachal Pradesh High Court had reversed the order of acquittal. It was held that there is no reason to disregard the dying declaration as the Head Constable has recorded it as narrated by the deceased and the deceased has also written few words about the accused.

Stating that the instant case portrays the deplorable depravity of the appellant that has led to a heart-breaking situation for a young girl who has been compelled to put an end to her life, the Court held that the High Court has absolutely correctly reversed the judgment of acquittal and imposed the sentence. It has appositely exercised the jurisdiction and we concur with the same. [Pawan Kumar v. State of H.P., 2017 SCC OnLine SC 509, decided on 28.04.2017]

 

Case BriefsSupreme Court

Supreme Court: In a petition highlighting the plight of the members of Scheduled Castes and Scheduled Tribes, the Court noticed that there has been a failure in complying with the provisions of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 as the laudable object with which the Act had been made is defeated by the indifferent attitude of the authorities.

Stating the legislative intent behind the enactment of the Act, the Court noted that  Parliament acknowledged that the Scheduled Castes and Scheduled Tribes were subject to various offences, indignities, humiliations and harassments perpetually. Numerous incidents of brutalities and atrocities depriving the Scheduled Castes and Scheduled Tribes of their life and property were a cause of concern for Parliament.

Regarding the contention of the Union of India that the State Governments are responsible for carrying out the provisions of the Act, the Court said that the Central Government also has an important role to play in ensuring the compliance of the provisions of the Act. Section 21(4) of the Act provides for a report on the measures taken by the Central Government and State Governments for the effective implementation of the Act to be placed before  Parliament every year. The constitutional goal of equality for all the citizens of this country can be achieved only when the rights of the Scheduled Castes and Scheduled Tribes are protected.

The 3-Judge Bench of T.S. Thkur, CJ and Dr. D.Y. Chandrachud and L. Nageswararao, JJ directed the Central Government and State Governments to strictly enforce the provisions of the Act and also directed the National Commissions to discharge their duties to protect the Scheduled Castes and Scheduled Tribes. The Court also asked the National Legal Services Authority to formulate appropriate schemes to spread awareness and provide free legal aid to members of the Scheduled Castes and Scheduled Tribes. [National Campaign on Dalit Human Rights v. Union of India, 2016 SCC OnLine SC 1488, decided on 15.12.2016]

 

Case BriefsSupreme Court

Supreme Court:  The Bench of Madan B. Lokur and R.K. Agrawal, JJ showed it’s distress over the conditions prevalent in the prisons and said that even though this Court has held on several occasions that prisoners both under trials and convicts have certain fundamental rights and human rights, little or no attention is being paid in this regard by the States and some Union Territories including the National Capital Territory of Delhi.

Stating that certainly fundamental rights and human rights of people, however they may be placed, cannot be ignored only because of their adverse circumstances, the Court issued the following directions:

  • The Ministry of Women and Child Development of the Government of India directed to expedite the preparation of the Manual and ensure that it is ready positively on or before 30th November, 2016, considering the fact that more than sufficient time has elapsed but the Manual for juveniles in custody has not yet been prepared.
  • Noticing that not a single State or Union Territory has bothered to prepare a Plan of Action in relation to overcrowding of prisons, the States and the Inspector General of Prisons are directed to prepare a viable Plan of Action within the next six months and in any event by 31st March, 2017.
  • The Union of India through the Ministry of Home Affairs is directed to obtain the status of compliance of the orders passed on 5th February 2016 and 6th May, 2016 as on 30th September, 2016. The information should be collated by the Ministry of Home Affairs and shared with the learned Additional Solicitor General and the learned Amicus so that even the rights of prisoners, whether convicts or under trials are given due importance.

The Court said that unless due importance is given to the fundamental rights and human rights of the people, the right to life and the right to live with dignity under Article 21 of the Constitution will have no meaning. [In re Inhuman Conditions in 1382 Prisons (II), 2016 SCC OnLine SC 1090, decided on 03.10.2016]