Justified or Unjustified demand of High Court Bench in Western UP

 Lawyers may be wanting High Court Bench in Western U. P. for their convenience. Has it ever been thought from the side of litigants? I had once an opportunity to go to Allahabad High Court in connection with a writ petition which is located 400 kilometres from my hometown. Distance is enough for incurring exorbitant expenditure with the stay in Allahabad as one is bound to stay at such a long distance. It was the month of May of scorching hot weather. In the morning, I reached High Court as per instruction of my counsel as I was asked first to get my photo scanned for affidavit. I was waiting for clerk of my counsel and at the same time I saw that a few other were talking on mobile and kept telling about the identification of mark where they stood and waiting for their lawyers. The frustration and embarrassment on their face could have easily been observed. Meanwhile, clerk of my lawyer reached and accompanied me to get photo scanned. It is really a place of unbearable crowd. I found a long queue there. I had to stand in queue for hours. I was feeling thirsty while standing in  the   queue but water was not available  and I was afraid of losing my number  if I  broke the line, obviously  I was to drink water after finishing the job. Thereafter, I moved to High Court building with the clerk to meet my lawyer. I was astonished to see unbearably crowded corridors of High Court. They were just appearing like share markets.  Shoulders of people were touching to each other. Unfortunately, I missed clerk and as a result I was not able to find out my counsel for hours, moreover, mobile network was not properly working in the High Court complex. I was constantly thinking that it would have been better if I had not come to High Court for seeking relief on violation of my fundamental right. I should have borne with the violation of right and it would have comparatively been better than such a painful mental and physical agony. I have been repeatedly visiting High Court   for the last six years facing   the same troubles and trauma and do not know how long the process will go on. Common men, especially those who are poor can’t afford to incur the huge expenses relating to travelling for engaging a lawyer and staying in Allahabad. There are a few trains from western U.P. to Allahabad. In winters, the trains are usually late which ensures that a litigants ends up wasting an entire week in the whole process of reaching Allahabad, finding a lawyer, settling the draft, filing of draft and coming back to town from Allahabad. This causes immense inconvenience in each aspect. Besides travel and lodging, the advocates of the High Court charge clients from West U.P. exorbitantly.

Pendency in the courts is a big crisis and, of course, major concern of responsible authorities. On an occasion, Chief Justice of India became emotional and literally cried. However concrete steps are not taken to address this issue. Creation of a Bench in western U. P. will of course minimise the crisis to a great extent. There may be other reasons for pendency but the main reason is that Allahabad High Court being the biggest High Courts in India is overburdened. Uttar Pradesh is the most populous State of India having 75 districts. The challenges faced by a state of such a huge population and area are unimaginable. For the citizens of Western U.P, a trip to Allahabad would entail travel of anywhere between 450 to 850 Km. It is enough to justify the demand of High Court Bench in Western U.P. for the sake of citizens not the lawyers. A separate Bench for Western U.P. has been a long standing grievance of the advocates of Western U.P. Since May 1981, every Saturday, the advocates of all 26 districts of Western U.P. refrain from doing work as a mark of protest against the inaction of the Central Government. This way, the court runs 5 days a week resulting in slow speed of judgments of lower courts. Besides the regular Saturday, lawyers of district courts keep to go on strike time and again in favour of this demand. This demand has been made strongly and consistently for the past 62 years ever old to any other demand in India and has been older than the demand of Uttrkahand, Jharkand and Chhatisgarh as separate States but to no avail. In 1981, the then Prime Minister Indira Gandhi constituted a three member   Commission  under the chairmanship of  Justice Jaswant Singh to determine the modalities, desirability and feasibility of constituting High Courts or benches of High Courts at Agra in U.P. and Aurangabad in Maharashtra. Though the second recommendation was acted upon immediately, the bench in Western U.P. is yet to be created.

It is one of the oldest demand ever since 1955. In September 2001, Agra lawyers waved black flags during a public meeting of the then Prime Minister Atal Bihari Vajpayee and then U.P Chief Minister Rajnath Singh. Refusing to be cowed down, the lawyers intensified their agitation, prompting a large number of policemen to enter civil court premises on September 26, 2001 and resort to lathicharge in which 250 lawyers were injured. The agitation was revived in the run-up to the 2009 Lok Sabha election. Road blockades and Agra bandh were organised. The lawyers entered the Taj Mahal premises on December 5, 2012 and again reached the gates of the monument of love on September 26, 2013 to press for the High Court bench in Agra. Such agitations have become order of the day in other districts of western U.P. particularly in Meerut.  But the central government has turned a deaf ear to the demand.

The people of Western U.P. have great hope from the present ruling party. A Bench in Western U.P. was one of the poll promises of the ruling party BJP. But this promise is also going to meet same fate as many other promises. The present Chief Minister of U.P., had as an M.P. introduced a Private Members Bill in Parliament in 2015 seeking the establishment of a bench of the High Court at Gorakhpur. Now, being himself Chief Minister of the State, he must be cognizant about the long pending demand. In July 2015, the Union Minister Sadanand Gowda assured that the centre wanted a High Court Bench in Western U.P. adding that the Allahabad Bar Association is opposed to the formation of a new High Court bench in Western U.P. However, the Allahabad Bar Association President could not provide a justifiable reasons for their opposition to the new Bench. Should a sensitive government submit before vested interest and not concede reasonable and justified demand of its citizens?

It is profoundly needed administratively but unachievable politically. Appeasement politics of political parties is not only confined to religious or caste communities but sometime it is regional also. BJP is not untouched with this. There is clear divide between Eastern and Western U.P. and no political party wants to irritate eastern U.P. on this issue. Politics overshadows the administrative need. Let it be required administratively, though a very old and genuine demand but Political parties do not pay heed as one region is not comfortable with this. Is the only solution to this problem to divide the State as proposed by Mayawati? Demand of Purvanchal, Harit Pradesh and Bundelkhand as separate states is already in vogue and ahead of Uttar Pradesh Assembly polls, the demand for separate Purvanchal State has become a burning issue among the smaller political parties.

  • Dr Ishrat Husain
  • Associate Professor
  • National Law University
  • Assam
  • Guwahati

An Analysis of DNA Profiling Bill 2018

“DNA profiling” is not a new term for all, because we have studied during school time. It is a technique by which individuals can be identified and compared via their respective DNA profiles. But now it is taking the form of legislation in India in the DNA profiling bill 2018 . Recently union cabinet passes it. Originally it was conceptualised by late former PM of India Atal Bihari Vajapyee . The drafting of then bill began first in 2007 and then in 2012.This bill was prepared by Department Of Biotechnology to form National DNA bank and DNA profiling board ,which will collect data from offenders ,suspects, missing person ,unidentified dead bodies in crime cases like homicide, sexual assault, adultery .
The government of India made decision due to PIL filed by a NGO Lokniti Foundation, known as Lokniti Foundation vs Union of India, stating that that India does not have a national bank data bases to address the issues of thousands of unclaimed dead bodies in India that are represent annually. In the wake of this PIL Supreme Court asked the court government to address the issue and A.P Shah Committee was formed and recommended the following guidelines:
 Citizens can appeal against the retention of data.
 Citizens under trial can request a second sample to be taken.
 Sample must be taken after consent in case of victims and suspects.
 Bodies collecting analysing and storing DNA data should be made to release an annual report, detailing their practices and organisational structure.
In case of any breach or misuse of data it will carry a punishment of up to 3years and 1 lakh as a fine.
The bill provides a index such as crime scene index, suspect index, undertrials index, offender index and missing person index. This bill made an effort to protect the compulsion or pressure to obtain a DNA sample from the arrest person without its consent but with some exception. Such exception is unclear in the bill. In case if suspect /criminal refuses to give its consent for DNA sample then by magistrate approval it can be taken, but sample can also be taken from a witness from a crime scene or want to locate their missing relative or in similar instances in which they can volunteer in writing, to offer their DNA sample for a specific purpose.
But amidst of all this ,bill facing certain criticism specifically with respect to privacy matters. DNA is the key to all information . In Putta Sammy vs Uoi, the Supreme Court held that privacy in fundamental right under Article 21and hence overruled the M.P Sharma case 1958 and Kharak Singh case 1961, where the Apex Court held that privacy is not a Fundamental right under Article 21 of part 3 of the Indian Constitution. The biggest problem to regulate this bill in practical is that India don’t have proper data protection law at present.. Many experts believe that this DNA bank will not have any improvement in conviction rates, where it is so adopted by other countries.
The biggest challenge is that we need DNA examiners and expert, even our enforcement agency must need regular training regarding how to take sample and preserve it because the rate of contamination is very high if not handled properly and it may lead to wrong investigation. India need to spend money on developing world class laboratory. No doubt this bill help to provide fast criminal administration justice but at the same time concern of privacy of individuals.

Pawan Kumar Sharma

Witch Hunt- The Socio-Legal Intricacies

By: Yashda Garg 

Witch hunt is an archaic and a barbaric practice consumes numerous lives every year. Yet, interestingly, the violence ensued by it is mercilessly silenced and wrapped in the garb of custom. In fact, with the passage of time, the mass approach has only reflected blindness towards the issue. Furthermore, despite the tremendous amount of violence involved in the witch hunt, it lacks a national legal code which could be adequate to deal with the issue in its entirety.
A significant thing to note here is that, barring the recent few contrary cases, the victims of Witch Hunt are generally the women who are mentally unsound, sans a spouse or children, and/or are from lower strata of society. This does not only exhibit the schematic nature of the matter, but also a sense of animosity against a particular section of the society.

Laws pertaining to Witch Hunt

It cannot be denied that the primary reason which aggravates the issue at hand is the scarcity of a national statutory provision. Different states have respective enactments to handle the issue effectively, with Bihar being the first state to give an affirmative nod to the legislation in the form of Prevention of Witch (Dayan) Practices Act, 1999. The step was followed by numerous states such as Jharkhand, Chattisgarh, Odisha, Rajasthan, and Assam to name a few.
The state of Assam, in fact, has only recently got the Presidential affirmation to the Assam Witch Hunting (Prohibition, Prevention, and Protection) Bill, 2015. The Act, 2015 classifies the practice as a non- bailable, non- cognizable, and non-compoundable offence while laying down up to seven year imprisonment and a fine up to 5 lakh for identifying any person as a witch.
Albeit the aforesaid state laws are progressive in nature, it is also important to note that witch hunting is prevalent in a large area of nation. Ergo, it is imperative to bring a nation-wide legislation into force in order to ensure that victims from certain areas do not remain ostracized.
The violent incidents of witch hunt are also dealt by invoking various provisions of Indian Penal Code, 1860. Majorly, Section 302 (murder), Section 307 (attempt to murder), Section 323(punishment for voluntarily causing hurt), Section 376 (punishment for rape), and Section 354 (outraging the modesty of a woman) of the Code, 1860 come into force while dealing with the atrocities pertaining to witch hunt.
Nonetheless, the provisions of the Code, 1860, fail to provide sufficient legal support to the heinous offence as the matter is reduced to fragmented chunks of multiple offences. This, certainly, results in a loss of identification of the violence which is accompanied by the practice.

Witch hunt as a social practice

The whole practice of witch hunt entails the social pattern which is being followed from the primitive times. Not only does it encapsulate the authority of regressive yet indelible social norms, it also vividly depicts the repercussions of a deviant behavior. In fact, with superstition being a primary ingredient of the practice, earlier times have created distinctive images of witches.
From a hag on a broom to a woman with supernatural powers, the narrative has undergone some shifts. What remains constant, however, is the horrendously violent treatment which is given to the people who are branded as witches. Going by the witch hunt accounts, the patriarchal Ojhas possess all the social powers to drive an entire town into brutally murdering the supposed evil force.
Interestingly, nowadays, in the present day era, where the progress and development have taken over the mass mindset, many have begun to turn a blind eye towards the issue and label the practice as passé. Some even refuse to acknowledge the prevalence of witch hunt in the technically advanced and modernized times.

Conclusion

While being a part of a larger scheme of gender oppression, witch hunt is a practice which needs to be eradicated altogether. In order to attain the aforesaid scenario, it is absolutely necessary for the legal machinery to make appropriate moves. However, a fair emphasis on the social outlook towards the practice is equally significant in the process.

Alwar Lynching: Supreme Court seeks, Rajasthan Government reply on contempt plea

NEW DELHI: The Supreme Court bench headed by Chief Justice Dipak Misra today, sought explanation from Vasundhara Raje led Rajasthan government over the issue pertaining to Akbar alias Rakbar who was attacked by alleged cow vigilantes in Ramgarh, Alwar, due to suspicion of being a cow smuggler.

A bench of  Chief Justice Dipak Misra, Justices A.M. Khanwilkar and Justice D.Y. Chandrachud asked the Principal Secretary of the state’s Home Department to file an affidavit on a plea seeking contempt of court proceedings against the state government.

The bench asked the Rajasthan government whether any disciplinary action has been taken against the police officers who allegedly took three hours to reach a hospital with a badly injured man accused of smuggling cows.

A dairy farmer from Haryana’s Mewat district, Rakbar was beaten up by seven people in July on suspicion of transporting two cows and their calves. The autopsy report said that he had died of shock and injuries from a “blunt weapon or object.

The bench was hearing a contempt plea filed by Tushar Gandhi and Congress leader Tehseen Poonawala seeking contempt action against the Rajasthan government in the mob lynching case at alwar.

Adityanath hate speech : Supreme Court Serves notice to UP Government

NEW DELHI: The Supreme Court on Monday asked the Uttar Pradesh government to explain in four weeks why Chief Minister Yogi Adityanath should not be prosecuted for an alleged hate speech he gave in 2007 in Gorakhpur.

A Supreme Court bench comprising Chief Justice of India Dipak Misra asked the government to reply as to why he should not be prosecuted for allegedly giving a hate speech in 2007,

The Allahabad High Court had upheld a decision by the Uttar Pradesh government to deny sanction to prosecute Yogi Adityanath in the case. The court has sought a response to the notice within four weeks.

In November 2008, the petition was filed by Mohammad Asad Hayat and Parvez, who said a hate speech by the chief minister had triggered the riots in which one person was killed. Parwaz was a resident of Gorakhpur and had filed an FIR in connection with the riots and Hayat was a witness in the case.

Adityanath, who then represented Gorakhpur in Lok Sabha, was arrested and also remanded to police custody for 11 days.

Dabholkar murder case: Main accused remanded in CBI custody

PUNE: The alleged main shooter arrested in the Narendra Dabholkar killing case received ‘shooting training’ at various places in Maharashtra and Karnataka, the Central Bureau of Investigation told a court in Pune on Sunday.

Andure, a resident of Aurangabad, was nabbed from Pune, a Central Bureau of Investigation (CBI) spokesperson said earlier.

The entire conspiracy was hatched by Dr Virendra Tawde along with this accused and this (conspiracy) needs to be unearthed for which his custodial interrogation is needed,” the CBI counsel told the court.

He was believed to be one of the shooters who fired at Dabholkar while he was on morning walk on the Onkareshwar Bridge in Pune on August 20, 2013, the CBI spokesperson said.

Dr. Dabholkar’s kin have continually expressed grave reservations about the sluggish pace of the investigation and State government’s apathetic attitude towards the case.

The Bombay High Court’s recent pulling up of the agencies for their tardy progress might have spurred them to action,” commented Dr. Hamid Dabholkar the slain rationalist’s son said.

Supreme Court restored the honour of an Army veteran who was among officers led Operation Blue Star

NEW DELHI: A bench of Justices A K Sikri and Ashok Bushan dismissed the appeal of the Centre against the AFT order but reduced the cost imposed on the government from Rs 10 lakh to Rs 1 lakh.

The top court upheld the decision of Armed Forces Tribunal setting aside the “punishment of reprimand” awarded to Major (now retd) Kunwar Ambreshwar Singh on charge of retaining certain electronic items recovered during the operation to flush out Sikh extremists from the Golden Temple Complex.

We see no merit in this appeal and the same is, accordingly, dismissed. However, we find that the costs of Rs 10 lakhs imposed upon the appellant is quite excessive. We reduce the said costs to Rs 1 lakh,” the bench said.

Singh was commissioned in the Army in 1967. As a Major in the 26 Madras Regiment in June 1984, he was posted at Jalandhar as part of the 38 Infantry Brigade and 15 Infantry Division. It was then that he was assigned the task to flush out Sikh extremists from the temple compllex in Amritsar.

Faculty cannot follow full time course while teaching: Madras High Court

CHENNAI: Acting as a faculty member, condemning the rituals of pursuing a full-time course of a teacher or professor, the Madras High Court has made it clear that the university or the concerned college can not be allowed without prior permission. .

The university/institution and the recognition authorities must ensure that no teacher/professor is permitted to do the full time course without obtaining prior permission from the University/College.

Justice S Vaidyanathan stated this in his recent order while upholding the decision of the Controller of Examinations, who nullified all exams in which a woman faculty member of S A Polytechnic College appeared.

Petitioner P Shanmughavalli submitted that she got admission for a two-year Mechanical Engineering course in Anna University for the 2014-16 academic year and got employed as a lecturer in the College, during which she applied for leave to appear for four semester examinations.

Women sentenced two months, imprisonment for filling false sexual assault case

Kolkata: A court here has sentenced a woman to two months’ imprisonment for falsely accusing a barber of sexually assaulting her eight-year-old daughter. During examination of witnesses earlier this week, the woman admitted in the court that she had levelled false charges, but did not give the reason. The judge has ordered the man’s release.

The woman had lodged a complaint at the Phoolbagan police station in June, that the barber had sexually assaulted her eight-year-old daughter while giving her a haircut.

the woman admitted in the court that she had levelled false allegations against the man under the Protection of Children from Sexual Offences(POCSO) Act.

During trial before the Special judge (P) Jimut Bahan Biswas at Sealdah Court, when the mother of the child was being questioned as a witness, the woman said she had made false allegations against the man, public prosecutor Vivek Sharma said.

The Judge then initiated proceedings against the woman and sentenced her to two months in jail for bringing the false charges against the man and acquitted the man of all charges and ordered his release.

Delhi High Court declines Afghan’s man plea to direct wife kids to return with him

NEW DELHI: A bench of justices S Muralidhar and Vinod Goel of Delhi High Court has declined the plea of an Afghan national to direct his wife and their two children. The court also denied him visitation rights to meet his children whenever he comes to India noting that the two, aged nine and four years, have expressed their reluctance to meet him.

Justices S Muralidhar and Vinod Goel noted that the man’s wife has obtained refugee status for herself and the two children under the mandate of the United Nations High Commissioner for Refugees (UNHCR) and their refugee ID cards are valid till April 12 next year.

His counsel also sought an order regarding visitation rights to the father whenever he visits India. However, as the children were not inclined to meet him, the bench said it was not possible at this stage to issue any omnibus order regarding his visitation rights and that he may seek the relief in other appropriate proceedings available to him under the law.