The Supreme Court today approved the Centre’s draft Cauvery Management Scheme for smooth distribution of water among four southern riparian states.
A bench headed by Chief Justice Dipak Misra rejected the suggestions of Karnataka and Kerala governments over the scheme, terming them as devoid of merits.
The bench, also comprising Justices A M Khanwilkar and D Y Chandrachud, said the Cauvery Water Disputes Tribunal’s award, which was modified by the apex court, has to be taken to the logical conclusion by the Cauvery Management Scheme.
It also dismissed Tamil Nadu’s plea seeking initiation of contempt against the Centre for non-finalisation of Cauvery scheme.
Karnataka, which is facing political tug of war between BJP and Congress-JD (S) over government formation, had earlier made a failed bid to temporarily stall the finalisation of draft Cauvery management scheme.
The top court had made it clear that it would see that the draft scheme is “in consonance with its judgement only.”
Earlier, the bench had red-flagged the provision empowering the Centre to issue the directions, saying “this part (power of Centre to issue directions) of the scheme is not in consonance with the judgement. We make it clear to you”.
The observation was made after the Centre had submitted the draft Cauvery management scheme in the court for its approval.
The apex court, in its verdict delivered on February 16, had asked the Centre to frame the Cauvery management scheme, including creation of the Cauvery Managament Board, for release of water from Karnataka to Tamil Nadu, Kerala and Puducherry.
The scheme, once finalised, would deal with the issue of water share of the four states in different circumstances like normal and deficient water years in the Cauvery river basin.
The top court had modified the Cauvery Water Disputes Tribunal (CWDT) award of 2007 and made it clear that it will not be extending time for this on any ground.
It had raised the 270 tmcft share of Cauvery water for Karnataka by 14.75 tmcft and reduced Tamil Nadu’s share, while compensating it by allowing extraction of 10 tmcft groundwater from the river basin, saying the issue of drinking water has to be placed on a “higher pedestal”.
The Supreme Court will hear the plea of three witnesses in the Kathua gangrape and murder case, alleging that they are being harassed by the state police, on May 16.
A bench of Chief Justice Dipak Misra and Justices A M Khanwilkar and D Y Chandrachud today agreed to hear on Wednesday the plea of Sahil Sharma and two others, who are college friends of the juvenile accused in the case.
According to their plea, they had already recorded their statements before the police and the magistrate.
The three witnesses had in their statement before the magistrate said they gave their statement to the police under coercion.
The petition today alleged that the state police was now asking them to re-appear and re-record their statements and exerting pressure in their families.
The apex court had on May 7 transferred the trial in the sensational Kathua gangrape and murder case of an eight-year-old girl from Jammu and Kashmir to Pathankot in Punjab, but refrained from handing over the probe to CBI saying there was no need as the investigation has been conducted and the chargesheet filed.
The victim, from a minority nomadic community, had disappeared from near her home in a village close to Kathua in the Jammu region on January 10. Her body was found in the same area a week later.
The state police has filed the main chargesheet against seven persons and a separate chargesheet against a juvenile in a court in Kathua district.
Chief Justice of India Dipak Misra today got a relief after two Congress MPs, challenging Rajya Sabha chairman M Venkaiah Naidu’s order rejecting the impeachment notice against him, withdrew their petitions from the Supreme Court.
The top court expressed its reluctance to go into their contention questioning the setting up of a larger bench to hear the matter.
A five-judge constitution bench headed by Justice A K Sikri declared the petitions moved by the two MPs as “dismissed as withdrawn” after senior advocate and party leader Kapil Sibal, appearing for the MPs, decided not to press the pleas realising that the judges were not inclined to accept his arguments.
Sibal had sought to know who had ordered the listing of the matter before a larger bench and sought a copy of the order, saying this was necessary to enable them decide whether or not to challenge it.
The 45-minute hearing before the bench, which also comprised Justices S A Bobde, N V Ramana, Arun Mishra and A K Goel, saw Sibal appearing for the Rajya Sabha Congress MPs–Partap Singh Bajwa from Punjab and Amee Harshadray Yajnik from Gujarat– raising questions over the setting up of the five-judge bench to hear the matter.
However, Attorney General K K Venugopal sought dismissal of the petitions filed by Bajwa and Yajnik, pointing out that only two of the over 60 members, who had earlier moved the impeachment notice in the Upper House of Parliament, have approached the apex court.
Venugopal said only two MPs from one party, the Congress, have moved the court when there were MPs from six other opposition parties who had moved a notice of impeachment motion before the Rajya Sabha chairman.
The AG said “the presumption is that all others have not supported the stand taken by the Congress party to challenge the rejection of impeachment notice by Naidu.”
He also claimed that the two Congress MPs have not been authorised by rest of the MPs to file the petition in the apex court. As many as 64 Rajya Sabha MPs had signed the notice of impeachment against the CJI, which was rejected by Naidu on April 23.
Before Attorney General opened his arguments, Sibal raised a volley of questions on the setting up of the constitution bench, including who had passed the order to set up such a bench to hear the matter.
The senior advocate said the matter was listed before the five-judge bench through an administrative order and the Chief Justice of India cannot pass such orders in this matter and sought a copy of the order, saying it was necessary for them to decide whether they could challenge it.
The bench repeatedly asked Sibal whether any purpose would be served if the two MPs were given a copy of the administrative order passed by the CJI for setting up of the five-judge bench.
“It is a piquant and unprecedented situation where CJI is a party and other four judges may also have some role. We don’t know,” the bench said.
Sibal said only after getting a copy of the order could they decide whether or not to challenge it.
However, when the bench showed reluctance to accept his arguments and submissions, the senior advocate decided to withdraw the petition.
The start of the hearing witnessed two advocates intervening and opposing the appearance of Sibal for the Congress MPs on the ground that he himself was a signatory to the impeachment notice before the Rajya Sabha chairman.
However, the bench did not accept their reasoning and went ahead with the hearing.
The two Congress MPs had yesterday moved the apex court challenging the rejection of the impeachment notice against the CJI by Naidu, claiming that the reasons given were “wholly extraneous” and not legally tenable.
Sibal had then mentioned the matter for urgent listing before a bench headed by Justice J Chelameswar, the senior-most after CJI Misra.
While Justice Chelameswar initially asked him to mention it before the CJI, the bench, which also comprised Justice S K Kaul, later asked Sibal and advocate Prashant Bhushan to “come back tomorrow”.
Late last evening, the matter was listed for hearing today before the five-judge constitution bench headed by Justice Sikri.
The Rajya Sabha Chairman had on April 23 rejected the notice, given by seven opposition parties led by the Congress for impeachment of the CJI on five grounds of “misbehaviour”. This was the first time that an impeachment notice was filed against a sitting CJI.
The petition filed by the MPs had alleged that the charges contained in the notice of motion were extremely serious and called for a full fledged inquiry
The Supreme Court today directed the listing of a case of a news portal’s scribes, who are facing criminal defamation complaint filed by BJP President Amit Shah’s son, before an appropriate bench for final disposal on April 18.
An supreme court bench headed by Chief Justice of India (CJI) Dipak Misra said since it was seized of hearing important cases pending before a constitution bench, there was paucity of time to hear this matter.
It said the petitions, which have challenged the Gujarat High Court’s order refusing to quash summons issued against them by a trial court in a defamation complaint filed by Shah’s son Jay Shah, be listed before an appropriate bench.
“Let the matters be listed before the appropriate bench for final disposal on April 18. The interim order passed on the earlier occasion to continue till the next date of hearing,” the bench, also comprising Justices A M Khanwilkar and D Y Chandrachud, said.
On March 15, the CJI-led bench had heard the pleas filed by news portal ‘The Wire’ and some of its scribes against the Gujarat High Court order. It had also asked the Gujarat trial court not to proceed with the complaint till today.
The high court had on January 8 rejected a plea filed by the portal, seeking quashing of the defamation complaint filed against it by Jay over an article related to his company.
On the last date of hearing before the apex court, senior lawyer Kapil Sibal, appearing for the portal and the scribes, had said that the article contained details from records which were in “public domain electronically”.
A five-judge constitution bench headed by the CJI and comprising Justices A K Sikri, A M Khanwilkar, D Y Chandrachud and Ashok Bhushan, is currently hearing the crucial matter relating to the validity of the Aadhaar Act.
The same bench is also scheduled to hear several other matters, including the one related to its 2013 judgment re-criminalising gay sex between consenting adults and ban on entry of women between 10 and 50 years of age in Kerala’s Sabarimala temple.
Shah had moved the lower court alleging defamation by the petitioners after the article published by the news portal claimed his company’s turnover grew exponentially after the BJP-led government came to power at the Centre in 2014.
The complaint was filed against the author of the article Rohini Singh, founding editors of the news portal Siddharth Varadarajan, Siddharth Bhatia and M K Venu, managing editor Monobina Gupta, public editor Pamela Philipose and the Foundation for Independent Journalism, which publishes The Wire.
Jay has separately filed a civil defamation suit of Rs 100 crore against the website over the article. He has also rejected the charges made in the article, insisting that the story was “false, derogatory and defamatory”.
SC to examine 157-yr-old law on adultery punishing only men
The Supreme Court today agreed to examine the constitutional validity of a colonial era law on adultery which punishes only the man even though the woman, with whom he has had consensual sex, may be an equal partner.
The top court also said if the husband gives consent for sexual intercourse between his wife and another man, then it nullifies the offence of adultery and turns the woman into a commodity, which goes against the principle of gender justice and the constitutional mandate of right to equality.
Section 497 of the Indian Penal Code states that “whoever has sexual intercourse with a person who is and whom he knows or has reason to believe to be the wife of another man, without the consent or connivance of that man, such sexual intercourse not amounting to the offence of rape, is guilty of the offence of adultery”.
The offence of adultery entails punishment of up to five years or with fine or with both. However, in such cases, the wife shall not be punishable as an abettor.
A bench of Chief Justice Dipak Misra and Justices A M Khanwilkar and D Y Chandrachud termed the provision a “prima facie archaic” and said this “tantamounts to subordination of a woman where the Constitution confers equal status”.
“A time has come when the society must realise that a woman is equal to a man in every field. This provision, prima facie, appears to be quite archaic. When the society progresses and the rights are conferred, the new generation of thoughts spring, and that is why, we are inclined to issue notice,” the bench said.
It said it would examine the constitutional validity of the 157-year-old provision and issued notice to the Centre, seeking its response in four weeks.
The court said it needs to examine why a married woman, who may have been an equal partner to the offence of adultery with a married man who is not her husband, should not be punished along with the man.
Secondly, the bench said it will examine if the husband of a woman gives his consent or connives for sexual intercourse with another married man, then does it not turn her into a commodity.
“Prima facie, on a perusal of Section 497 of the Indian Penal Code, we find that it grants relief to the wife by treating her as a victim. It is also worthy to note that when an offence is committed by both of them, one is liable for criminal offence but the other is absolved,” it said.
The top court said the provision seems to be based on a “societal presumption” and ordinarily, the criminal law proceeds on gender neutrality but in this case, “as we perceive, the said concept is absent”.
“That apart, it is to be seen when there is conferment of any affirmative right on women, can it go to the extent of treating them as the victim, in all circumstances, to the peril of the husband,” the bench said.
It said when the provision is perceived from the language employed in the section, then the “fulcrum of the offence is destroyed once the consent or the connivance of the husband is established”.
“Viewed from the said scenario, the provision really creates a dent on the individual, independent identity of a woman when the emphasis is laid on the connivance or the consent of the husband”, it said.
During the hearing, Justice Chandrachud observed that at present, the law assumes a “patronising attitude” towards the woman and treats her as a victim which amounts to violation of a fundamental right and gender discrimination.
Advocates Kaleeswaram Raj and Suvidutt M S, appearing for petitioner Joseph Shine, an Indian citizen but residing in Italy, said section 497 was “prima facie unconstitutional on the ground that it discriminates against men and violates Article 14, 15 and 21 of the Constitution of”.
He said “when the sexual intercourse takes place with the consent of both the parties, there is no good reason for excluding one party from the liability”.
The lawyer said the provision also indirectly discriminates against women by holding an erroneous presumption that they are the property of men.
“This is further evidenced by the fact that if adultery is engaged with the consent of the husband of the woman, then such act seizes to be an offence punishable under the code,” he told the bench.
He said the said provisions have been treated to be constitutionally valid in three verdicts of the apex court in 1954, 1985 and in 1988.
Raj said that petitioner has also challenged the Section 198(2) of CrPC, which deals with prosecution for offences against marriages.
SC tells office holders to refrain from commenting on Padmavati
The Supreme Court today took strong exception to statements made by persons holding high offices against the film “Padmavati”, saying the remarks were tantamount to pre-judging the movie which is yet to be certified by the Censor Board.
A bench headed by Chief Justice Dipak Misra dismissed the fresh petition that had sought an order to restrain the producers of the movie from releasing it abroad.
Lawyer M L Sharma had also sought a direction to the CBI to register a case against director Sanjay Leela Bhansali and others for various offences including defamation and violation of the Cinematography Act.
The bench which also comprised Justices A M Khanwilkar and D Y Chandrachud termed as “misconceived”, the prayers sought by Sharma in his fresh petition and said that the court cannot pre-judge a movie which is yet to be certified by the Central Board of Film Certification (CBFC).
The irked bench, however, did not impose cost on Sharma keeping in view the fact that he has been a practising lawyer of the apex court.
SC to Hadiya: Wife is not a chattel, hubby can’t be guardian
A wife is not a chattel and the husband cannot be her guardian, the Supreme Court said today after interacting with a Kerala woman, alleged victim of love jihad.
A bench of Chief Justice Dipak Misra and Justices A M Khanwilkar and D Y Chandrachud interacted with the 25-year old Hadiya for nearly half-an-hour and posed questions on her life, ambition, studies and hobbies.
Hadiya told the apex court that she wanted ‘freedom’ to live with her husband, profess her faith in Islam and that she very well understood what she was doing.
When the bench asked Hadiya to name any relative or any near acquaintance to be named as her local guardian in college at Salem in Tamil Nadu, she said her husband could be her guardian and she does not want anyone else in that role.
“A husband cannot be a guardian of his wife. Wife is not a chattel. She has her own identity in life and society. Even I am not guardian of my wife. Please make her understand,” Justice Chandrachud said.
The bench posed questions to Hadiya in English while she answered in Malyalam, which was translated by senior advocate V Giri, who appeared for Kerala government.
When the bench asked Hadiya what your dreams are for the future, she replied she wanted freedom and to live with her husband.
The bench then asked whether she was comfortable in professing her faith and studying simulatenously and told her that being a good citizen, she can profess her faith and be a good doctor.
Hadiya replied she wanted freedom to profess her faith and she fully understood what she is doing.
The bench asked her whether she wanted to continue her studies and pursue internship in house surgeonship at the expense of the state government.
The woman said she wanted to pursue her studies but not at the state’s expense as her husband will take care of her.
She further requested the court that she be allowed to visit her friend before being taken to Salem, to which the court agreed and directed the state government to provide her security.
The court asked Kerala police ensure that she travelled at the earliest to Salem in Tamil Nadu to pursue homeopathy studies at Sivaraj Medical College there and appointed dean of the institution as her local guardian.
There can be no compromise on a citizen’s fundamental rights, Chief Justice of India (CJI) Dipak Misra said today while responding to the assertion of Union Law Minister Ravi Shankar Prasad that governance “must remain” with those elected to govern.
On Prasad’s remark that “PILs cannot become a substitute for governance”, the CJI said the Supreme Court believed in and practised “constitutional sovereignty”.
“The fundamental rights are in the core value and the bedrock of the Constitution. An independent judiciary with the power of judicial review has been conferred with the power of the ultimate guardian of the Constitution to strike a balance … to ensure that respective governments are functioning as provided by the law within their respective domains,” he said.
There can be no compromise with the citizen’s fundamental rights, he said at a function organised by the apex court to celebrate Constitution Day.
“The citizens’ rights have to be at the pinnacle,” Justice Misra asserted.
Calling the Constitution a “lucid” and “living” document, he said, “The Supreme Court of India today believed that we are only under Constitutional sovereignty and we shall practise it”.
Though no right was absolute, there should be no fetters which “destroy the central dogma of the constitution”, the CJI said at the function, inaugurated by President Ram Nath Kovind.
Justice Misra said the focus of the judiciary should be on reducing pending cases, rejecting frivolous litigations and stressing on alternative dispute resolution mechanisms to settle cases.
Speaking at the function, the Law Minister said though PILs served the purpose in dispensing justice to the poor, they should not be used as a substitute for governance and the law-making powers of the executive and the legislature.
“PILs should not become a substitute of governance and the government because the founding fathers gave this right to those elected to govern,” Prasad said.
He said law-making must be left to the realm of those elected to make the law.
“The founding fathers clearly meant that governance must remain in the realm of those elected to govern by the people of India and accountable to the people of India.” he said.
While independence of the judiciary was “important”, judicial accountability, probity and propriety were “equally” necessary, he said.
“In the case of the judiciary, the accountability is latent… Independence (of judiciary) is most important, but probity and propriety are equally important,” he said, while adding that “reckless allegations” should not be made or paid heed to.
Attorney General K K Venugopal termed a “boon” the evolution of the public interest litigation by the Supreme Court and said it had served poor citizens of the country.
He referred to a judgement in a PIL that had led to the mass release of undertrial prisoners who had served the maximum jail terms prescribed for offences during the trial itself.
The top law officer, however, had a word of caution for the judiciary and said the question was if the purpose sought to be achieved by PILs had been attained.
“It is one thing to deliver a judgement in a PIL but to implement it and to achieve results is a totally different thing. Therefore… there has to be collaborative effort,” he said.
“The government has to be given the opportunity to consider the various pro and cons (of an issue). The government has to come forward with solutions. The government has to be heard … what their budget allows…,” he said.
He suggested that one or two special benches hear PILs and said there should be adequate guidelines to deal with the pleas.
Moreover, there should be “collaborative efforts” on the part of the judiciary and the executive to ensure that the judgements are implemented keeping in mind the limited resources.
Referring to the humble background of President Kovind, Supreme Court Bar Association (SCBA) president and senior advocate R S Suri said it was the power of democracy and the Constitution that a person from a poor section of society had reached the very top.
The Bar head then raised the issue of delays in appointment in the judiciary and suggested that lawyers practising in the apex court and retired judges be considered and appointed judges in the highest judiciary as mandated under the Constitution.
Backlog of cases can’t be roaring tiger before judiciary: CJI
Chief Justice of India Dipak Misra today said pending cases cannot be a “roaring tiger” before the judiciary and held that the backlog problem will be tackled if the bar and the bench worked together.
The CJI asked the bar body and the lawyers to assure him that they would not seek unnecessary adjournments in cases, stressing that it was a way to resolve the backlog problem.
“Let us promise each other that we shall collectively march ahead to reduce pendency. Pendency cannot be a roaring tiger before us. We will be able to tackle it if we work together,” the CJI said while speaking at a function here organised by the Supreme Court Bar Association to celebrate Constitution Day.
The people, he said, must pledge to defend the dream and vision of the Constitution.
“We cannot permit … anyone and I mean anyone who harbours the notion of denigrating the dignity of the institution at his whims and fancy,” he said.
Speaking on the issue of pending cases, he said rotational benches of the high courts across the country were functioning on Saturdays and were taking up criminal appeals which were around 10 years old.
“I must tell you in last one and a half months, all the high courts combined have disposed of around 1100 appeals and the credit goes to the judges and the members of the bar. In the Supreme Court in last two months, we have brought down pendecy by more than 3,200 cases,” he said.
He said that advocates on record (AoRs) of the apex court should get the privilege to mention a matter for urgent hearing and stressed that the lawyers should come prepared even if they seek early hearing.
“I have told my colleagues (judges) to come prepared even if the case is listed for early hearing. If the case can be disposed of, we will sit and dispose it of,” he said.
Addressing the gathering, Union Law Minister Ravi Shankar Prasad said the government had made 106 appointment in the higher judiciary this year.
“In the subordinate judiciary, there are about 5,000 vacancies. The Centre has no role in it. Appointments are done by the high courts or public service commissions. We have written to the CJI,” he said.
Prasad also said fresh talents should join the subordinate judiciary.
“It is time to induce new blood, new talent in the subordinate judiciary,” he said, adding, “We need to collectively work together”.
Attorney General K K Venugopal lamented the delay in justice delivery and said certain cases may take eight years to pass the trial court and the same in high courts and the apex court.
“A total of 24 years. Only rich persons can file a case,” he said, adding that there was a need for increasing the number of judges.
“We have only 18 judges for a million people. This is the root cause of delay in justice. The total number of judges needs to be increased,” he said.
Since the government was party to 70 per cent cases, its early disposal would also benefit the government, he said.
The Supreme Court today said it would hear a batch of petitions on Aadhaar-related matters in November after the Centre informed that it will extend till December 31 the deadline to furnish Aaadhar to avail benefits of social welfare schemes.
A bench headed by Chief Justice Dipak Misra said there was no urgency to hear the matter after Attorney General K K Venugopal told the bench that the Centre will extend the September 30th deadline.
Senior advocate Shyam Divan, representing various petitioners, mentioned the matter before the bench, also comprising Justices Amitava Roy and A M Khanwilkar and sought early hearing on the batch of petitions which have also challenged the Centre’s move to make Aadhaar mandatory for availing benefits of of various social welfare schemes.
When Divan referred to the deadline of September 30, Venugopal said, “We (Centre) will extend it to December 31”.
“The urgency is not there. It will be listed in the first week of November,” the bench said.
A three-judge bench had on July 7 said that all issues arising out of Aadhaar should finally be decided by a larger bench.
Later on July 12, the apex court said that its five-judge Constitution Bench will hear matters relating to Aadhaar, including the aspect of right to privacy.
The five-judge bench on July 18 had constituted a nine- judge bench to decide on right to privacy.
A nine-judge Constitution bench of the apex court had on August 24, declared the Right to privacy as a Fundamental right saying it is protected as an intrinsic part of the right to life and personal liberty under Article 21 and as a part of the freedoms guaranteed by Part III of the Constitution.
The apex court was hearing three separate petitions challenging government’s notification making Aadhaar mandatory for availing benefits of various social welfare schemes.
The Supreme Court today approved the Centre’s draft Cauvery Management Scheme for smooth distribution of water among four southern riparian states.
