Author: Legal India Admin

SC asks Jharkhand govt if it wants to withdraw sedition charges against accused in Pathalgarhi case.

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The Supreme Court has asked the newly elected Jharkhand government to clarify whether it wants to withdraw cases against four tribal activists booked under sedition charges for allegedly writing Facebook posts supporting the Pathalgarhi movement in the state.

The top court was informed by the accused that the Hemant Soren government in the state had, in one of the first decisions of the Cabinet, announced that it would take back all criminal cases related to the movement.

Pathalgarhi is a name given to a tribal protest which seeks autonomy for village sabhas (gram sabhas). Those demanding Pathalgarhi want no laws of the land be applicable on the tribal people in the area. The Pathalgarhis reject government rights over their forests and rivers.

As part of the movement, Pathalgarhis erect a stone plaque or signboard outside the village/area, declaring the village a sovereign territory and prohibiting the entry of outsiders.

A bench of Justices L Nageswara Rao and Hemant Gupta asked standing counsel for Jharkhand, Tapesh Kumar Singh, to take instruction and inform it in two weeks about any decision of withdrawal of cases.

“List after two weeks. In the meanwhile, learned counsel for the state of Jharkhand is directed to get instructions as to whether the state intends to proceed with the criminal cases registered against the petitioners,” the bench said in its order uploaded recently.

At the outset, advocate Joel, appearing for four petitioners led by one J Vikash Kora informed the court that new government was sworn in the state and it announced in its first cabinet meeting that criminal cases arising out of Pathalgarhi movement will be taken back.

Advocate Tapesh Kumar Singh representing the state said that if that is the case then the petitioners should withdraw their appeal against the Jharkhand High Court order of last year refusing to quash the cases against them.

The bench, however, asked Singh to take instruction from the competent authority and apprise it in two weeks.

The Jharkhand High Court had on July 22, last year, declined to quash the sedition charges against four accused — J Vikash Kora, Dharm Kishor Kullu, Emil Walter Kandulna and Ghanshyam Biruly — who were booked for inciting supporters of Pathalgarhi movement through their Facebook posts to attack police officials after three police guards of former BJP MP Karia Munda were abducted in year 2018.

According to the prosecution, an FIR was registered against the accused under section 121 (waging war against India), 121A (conspiracy to wage war against India), 124A (sedition) of the IPC and also under provisions of of Information and Technology Act.

Twenty people were booked in the case out of which only four approached the apex court for quashing the sedition and others charges made against them.

In an affidavit filed in the top court during the last month of previous BJP government, the state had said that an investigation was underway but there was sufficient material to show that the accused had, through social media and Facebook, undertaken “anti-national”, “unconstitutional” activities against the unity and integrity of the country and incited communal and caste based unrest.

“Further the prosecution case is that the petitioners and others, through social media, were spreading false messages, deluding people and causing misunderstanding and instigating a large number of inhabitants of the districts to disturb peace by spoiling social and communal harmony,” it said.

The state said that it was clear through the messages of the accused that wrong interpretations of the Constitution were given to incite anti-national feelings, and to spread propaganda based on community and castes.

On January 22, supporters of Pathalgarhi movement, armed with lathis and axes had kidnapped seven villagers and later killed them in West Singhbhum district of Jharkhand for allegedly opposing their stir.

Jharkhand Chief Minister Hemant Soren postponed his scheduled cabinet expansion due to the incident and had ordered setting up of Special Investigation Team (SIT) to probe the case.

Need to ease norms for fintech sector in India : Advocate Pratibha Jain.

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There is a need to ease regulation for the fintech sector in India for promoting financial inclusion, a lawyer has said while observing that ban on technologies like cryptocurrencies will push them to develop outside the country.

While regulations are critical to ensure that fintech solutions are not used for money laundering or terror financing, banning new technologies will prove to be counter productive, advocate Pratibha Jain said at the World Economic Forum in Davos.

Jain, Founder and New Delhi Head of the Nishith Desai Associates, was invited to speak at the Caspian Week, WEF. The conference focuses on the caspian region as a vital element of the future global society and economy.

She was speaking at the session, “Anti-Money Laundering and Counter Terrorist Financing (AMLCTF) System in Modern FinTech Industry”.

“As technologies are still evolving, prescriptive laws will keep becoming obsolete as technologies change, and banning technologies like cryptocurrencies will only push the market for them to develop outside India,” the corporate lawyer said.

A matter related to cryptocurrencies is pending in the Supreme Court. A batch of pleas had challenge a Reserve Bank of India circular prohibiting banks and financial institutions from providing services in relation to cryptocurrencies.

Cryptocurrencies are digital currencies, in which encryption techniques are used to regulate the generation of the currency units and verify the transfer of funds, operating independently of a central bank.

Jain further said, “Anti-Money Laundering and Counter-Terrorism Financing regulations are undoubtedly very important for a country like India where the parallel cash economy and terrorism financing — both of which are a major challenge to not only national security, but also for economic growth and development.

“In that sense they help protect the rule of law and democracy. They are also important for international security”.

Highlighting the implications for regulation, Jain said, regulations need to be balanced and principle-based rather than rule-based.

Jain said the authorities seriously consider three issues — efficacy of fintech companies to provide solutions for financial inclusion, myriad of laws and safeguards against abuse of such laws by governments.

Delhi Court allows police to investigate case against man for allegedly publishing false info on EVM

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A Delhi court on Saturday allowed police to investigate a case against a man who shared allegedly false information on social media, claiming that EVM/VVPAT machines brought to give demo in his area ahead of the assembly elections were not showing correct vote count result.

Metropolitan Magistrate Abhilash Malhotra gave permission to the Station House Officer (SHO) of Sabzi Mandi Police Station to investigate the case against a Delhi-resident who allegedly posted a video, claiming that the voting machine was not showing correct results.

The police approached the court seeking permission for investigation as the case was registered for non-cognisable offences.

According to the Code of Criminal Procedure, no police officer shall investigate a non-cognisable case without the order of a magistrate having power to try such case or commit the case for trial.

The case was registered on the complaint of Shammi Kumar, a junior assistant at a polling centre at Timarpur in Delhi.

In his complaint, Kumar said that he was on election duty and giving a demo of EVM/VVPAT machines for raising awareness among voters ahead of the assembly elections.

The accused cast three votes and found that the total vote count was five, following which he raised objection against the difference in vote count, the complaint said.

He recorded a video of the incident too, it said.

The complainant said that he tried to explain to the man that two other people had taken a demo before him and hence the voting machine showed that five votes.

Kumar gave Pandit a demo of the machine again and showed him the same number of votes cast by him, the complaint said.

It alleged that despite this, Pandit posted the video on social media claiming that EVM/VVAPT was not showing the correct vote count result.

Kumar then registered a case with the police for non-cognisable offences under section 186 (obstructing public servant in discharge of public functions), 177 (furnishing false information) and 505 (1) (publishing statement, rumour or report) of the India Penal Code (IPC).

Kerala HC asks schools to desist from imparting religious study without govt permission.

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In a significant verdict, the Kerala High Court on Friday directed the state government to issue an order directing all recognised private schools in the state to desist from imparting religious instruction or religious study without the permission of the government.

In his order, Justice A Muhamed Mustaque said the government can initiate action for closure and de-recognition of the schools if they are found violating the order.

The court issued the order while declining a plea challenging the state’s action of closing down a school on the premise that it promotes exclusive religious instruction and amidst only students from a particular community, thereby posing threat to the secular fabric of society.

The court observed that the Constitution accords special protection to the minorities under Article 25, Article 29 and Article 30.

Cultural rights, as protected under Article 29, would include nature of education as well, it said.

The right to establish and administer educational institutions under Article 30 would also include the right to choice of education, subject to any restriction imposed under law, the court said.

“However, these rights do not extend to dilute the secular nature of education. These rights cannot override the basic values of the Constitution. It can be exercised only in consistent with the fundamental values of the Constitution,” it said.

Noting that the status of minority institutions in relation to imparting elementary education is relatable to State function, the high court said, “minority institutions, therefore, cannot shrug off their role as State functionaries and protect sectarian education under the garb of Articles 29 and 30.”

The court said Article 21A and RTE Act of compulsory elementary education do not conceive the idea of education beyond the realm of secular activity of the State.

“If minority institutions are given free hand to promote religion, it would result in denial of admission to such schools based on religion,” the court said.

Madras High Court orders family pension to 2nd wife : Citing SC judgment

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Coming to the rescue of the second wife of a deceased doctor, the Madras High Court has directed the Director of Local Fund Audits to sanction family pension with effect from the date of her husband’s death.

C Sarojini Devi had challenged the order of the Director of Local fund Audits, Chennai, refusing to grant family pension on the ground that the marriage between the petitioner and doctor, a deceased government employee, was not valid and she cannot be considered to be the legal representative.

Citing a Supreme Court judgment, Justice Anand Venkatesh allowed her petition and said “… this court has to necessarily lean towards the presumption of marriage rather than branding the petitioner as a concubine.”

“This will be the most appropriate way to deal with the facts of the present case, if justice has to be done to the petitioner,” the judge said, quashing the order.

The doctor, A Chinnasamy married Sarojini Devi in 1975 during the subsistence of his first marriage and had three children through her.

After the first wife died in 1997, he nominated the petitioner on May 11, 1999 to receive the family pension after his death.

It was submitted that the petitioner lived with Chinnasamy for nearly 12 years even after the death of the first wife.

The special government pleader said the petitioner cannot be considered to be the deceased government employee’s legal heir.

Citing an apex court judgment, the judge said the supreme court has held that “law presumes in favour of marriage and against concubinage, when a man and woman have co-habitated continuously for a long time.”

It was very easy to brand the petitioner as a concubine and deprive her of her livelihood. However, the fact remains that she lived with the deceased from 1975 upto his death in 2009, Justice Venkatesh said.

This means that the petitioner lived with him for nearly 34 years, the judge said, adding she also gave birth to three children.

If the petitioner had made this claim when the first wife was alive, then obviously she will not be entitled for the pension since her relationship is not recognized by law, the court said.

After the first wife died, the petitioner lived with Chinnasamy till his death.

“During this period, it can always be construed that the petitioner and the deceased Dr A Chinnasamy were living as husband and wife and their long co-habitation itself raises that presumption of marriage.”

Besides Chinnasamy had also nominated the petitioner to receive the family pension, the court said.

Quashing the order, the judge directed officials to sanction family pension with effect from the date of Chinnasamy’s death on January 20,2009.

Officials should disburse the pension arrears within 12 weeks from the date of receipt of a copy of the order, the judge said, adding the petitioner shall be continued to be paid the family pension till her lifetime.

India reiterates that there is no role for any third party on Kashmir issue.

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India today reiterated that there is no role for any third party on the Kashmir issue. Responding to a media query on United States President Donald Trump’s remarks to help in resolving the Kashmir issue, External Affairs Ministry Spokesman Raveesh Kumar said, New Delhi’s position has been clear and consistent that the issue should be discussed between India and Pakistan under provisions of Shimla Agreement and Lahore Declaration.

He said the onus is on Pakistan to create an environment for engagement. The Spokesman added that Pakistan’s attempt to create an alarmist situation in Kashmir has failed as the global community understands Islamabad’s double standard. The US President had reportedly offered to mediate between the two nations during the World Economic Forum summit in Davos.

On remarks made by Pakistani Prime Minister Imran Khan at Davos on India and India-Pakistan relations, the Spokesman said, the remarks are factually inaccurate and contradictory.

He said Pakistan has to realize that the global community has seen through their double-standard of playing the victim card in their fight against terror on the one hand and supporting terror groups on the other.

SC says it will consider after 3 months Swamy’s plea for giving Ram Sethu national heritage status.

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The Supreme Court on Thursday said it will consider after three months the plea of BJP leader Subramanian Swamy seeking a direction to the Centre for declaring ‘Ram Sethu’ as a national heritage monument.

Ram Sethu is a chain of limestone shoals between coasts of India and Sri Lanka. According to the epic Ramayana, the Ram Sethu bridge was built by the ‘Vanara army’ to rescue Sita, who was kidnapped by Ravana.

A bench headed by Chief Justice S A Bobde took note of the submissions of Swamy that his interim application be listed for urgent hearing for declaring the Sethu a national heritage monument by the Archaeological Survey of India.

“You please mention this after three months. We will entertain this then,” the bench which also comprised justices S A Nazeer and Sanjiv Khanna said.

The BJP leader submitted that he has already won the first round of the litigation in which the Centre accepted the existence of Ram Sethu.

He further said the union minister concerned had called a meeting in 2017 to consider his demand to declare the Sethu as a national heritage monument but subsequently nothing happened.

The top court referred to pendency of several cases before it and asked Swamy to mention his plea after three months for an urgent hearing.

The BJP leader had earlier raised the issue of declaring Ram Sethu as a national monument in his PIL against the controversial Sethusamudram Ship Channel project, initiated by the UPA-I government.

The matter had reached the apex court, which in 2007 had stayed the work for the project on the Ram Sethu.

The Centre had later said that it considered the “socio-economic disadvantages” of the project and was willing to explore another route to the shipping channel project without damaging the Ram Sethu.

“That the Government of India intends to explore an alternative to the earlier alignment of Sethusamudram Ship Channel project without affecting/damaging the Adam’s Bridge/Ram Sethu in the interest of the nation,” the affidavit filed by the ministry had said.

The court had then asked the government to file a fresh affidavit.

The Sethusamudram shipping channel project has been facing protests from some political parties, environmentalists and certain Hindu religious groups.

Under the project, a 83 km-long deep water channel was to be created, linking Mannar with Palk Strait, by extensive dredging and removal of limestone shoals.

The apex court had on November 13 last year granted six weeks to the Centre to clarify its stand on the Ram Sethu. It had also granted liberty to Swamy to approach the court if the response of the Centre was not filed.

Law Ministry approves EC proposal to link Aadhaar link with voter ID.

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The voters may soon be asked to link their voter cards with Aadhaar numbers as the Union Law Ministry has reacted positively to a request from the Election Commission of India. EC seeks legal power to resume the practice, The Indian Express has reported.

The ministry, however, has asked the EC to “enumerate” the safety measures in place to prevent “theft, interception and hijacking” of data.

In August, EC wrote a letter to the Law Secretary, proposing amendments to the Representation of the People Act, 1950, and the Aadhaar Act, 2016, for getting statutory backing to collect Aadhaar numbers of new applicants and existing voters to check multiple entries in electoral rolls.

According to the EC proposal, the electoral law should be amended to empower the Electoral Registration Officer to seek Aadhaar numbers of the existing voters, as well as of those applying to the voters’ list.

In support of the proposal, the poll watchdog argued seeding of voter cards with Aadhaar would help remove duplicate entries and fake voters and, hence, serve the national interest.

It, however, mentioned that no one would be denied enrolment or deleted from the voters’ list for the inability to provide Aadhaar numbers.

In September, the Law Ministry reportedly responded stating that the EC’s rationale would “pass the benchmark test laid down by the Honourable Supreme Court for collecting Aadhaar details for purposes other than getting benefits of state-sponsored schemes”.

Further, given the Supreme Court’s emphasis on the need for “protecting the privacy of individuals”, the ministry asked EC to list the safeguards built into the electoral roll data platform.

On December 12, the poll watchdog replied to the ministry, stating that it had already taken “multiple measures” to protect the voter list data, suggested the report.

The exercise of linking Aadhaar with the Electors Photo Identity Cards (or EPIC) was first started in February 2015 when HS Brahma was the chief election commissioner. But, it was stopped in August that year after a Supreme Court order.

EC had already linked 38 crore voter cards to Aadhaar by then, added the report.

Centre moves SC seeking 7-day deadline for hanging death row convicts.

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The Centre on Wednesday moved the Supreme Court for fixing a seven-day deadline for executing death penalty of condemned prisoners.

The plea of the Ministry of Home Affairs (MHA) assumes significance in view of the the death row convicts in the sensational Nirbhaya gangrape and murder case of 2012 filing review, curative and mercy petitions, which has delayed their hanging.

The MHA’s plea sought a direction from the top court in fixing the deadline for filing of curative pleas after the rejection of review petitions.

It also sought a direction that “if the convict of death sentence wants to file mercy petition, it would be mandatory for a convict of death sentence to do so only within a period of seven days from the date of receipt of death warrant issued by the competent court”.

The MHA submitted that the top court should “mandate all the competent courts, state governments, prison authorities in the country to issue death warrant of a convict within seven days of the rejection of his mercy petition and to execute death sentence within seven days thereafter irrespective of the stage of review petition/curative petition/mercy petition of his co-convicts”.

The top court, on January 20, had rejected the plea of a death row convict in the Nirbhaya gang rape and murder case challenging the Delhi High Court order which had dismissed his claim of being a juvenile at the time of offence saying he cannot re-agitate the issue by filing fresh application.

A Delhi court has recently issued fresh death warrants for February 1 against the four convicts — Vinay Sharma (26), Akshay Kumar Singh (31), Mukesh Kumar Singh (32) and Pawan (26) — in the case after their hanging got delayed from January 22 due to pending petitions.

The 23-year-old paramedic student, referred to as Nirbhaya, was gang-raped and brutally assaulted on the intervening night of December 16-17, 2012, in a moving bus in south Delhi by six people before she was thrown out on the road.

Plea filed in Delhi HC seeking contempt proceedings against ‘Chhapaak’ makers.

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A petition seeking contempt proceedings against the makers of Deepika Padukone-starrer film ‘Chhapaak’ was Wednesday filed in the Delhi High Court by an advocate who represented acid attack survivor Laxmi Agarwal on whose life the movie is based.

Advocate Aparna Bhat approached the HC, saying that film director Meghna Gulzar and producer Fox Star Studios did not comply with its order restraining them from screening the film without giving credit to the lawyer for inputs she shared with them.

Justice Prathiba M Singh had on January 11 directed the filmmakers to acknowledge advocate Aparna Bhat in the opening credits by including the line — “Inputs by Ms Aparna Bhat, the lawyer who represented Laxmi Agarwal, are acknowledged”.

“Pass an order awarding punishment for contempt of court against contemnors for ‘willful and blatant disobedience’ of judgement dated January 11 and order dated January 11,” the petition said.

It claimed that “grave and irreparable harm and injury would be occasioned to the petitioner if this court does not grant the relief”.

The bench had on January 11 passed the order on a plea by Fox Star Studio, producer of the movie which was released on January 10, challenging a trial court’s order asking them to acknowledge the contribution of the advocate.

Regarding the theatrical exhibition, the high court had said since the film has already released on January 10, both internationally and in India, to ensure that there was no disruption in the screening, it was directed that the film would not be exhibited in theatres with effect from January 15 without adding the credit to the advocate to the digital copies.

In the theatres where physical copies of the film were to be supplied by the producer, the changes had to be carried out with effect from January 18, it had said.

The film producer’s advocate had said the trial court did not hear them before passing an order and an ad-interim ex-parte injunction was passed which is unusual.

The counsel for Bhat had said she had fought the case for Laxmi pro-bono and was not seeking any publicity and she was approached by Gulzar to get some authenticity in the movie.

He had said that Bhat’s assistance was based on her communication with Gulzar that her contribution would be acknowledged.

Bhat, in her plea before the trial court, had said that despite representing Laxmi in courts for several years and helping in the movie making, she was not given credit in the movie.

She had said the film-makers took her help in the entire process of writing and shooting the movie, but did not give her credit.