P & H HC Directs Haryana DGP To Implement Police Guidelines in DK Basu Case During Farmers Protests Against Three Agricultural Ordinances

In a latest, landmark and laudable judgment titled Haryana Progressive Farmers Union – Sabka Mangal Ho Vs State of Haryana and another in CWP No. 14874 of 2020 delivered just recently on September 18, 2020, the Punjab and Haryana High Court has directed the DGP Haryana to ‘sensitize’ police officials performing duties during these farmers protests against the three Ordinances regulating farming and agricultural sectors about the guidelines for police laid down by the Supreme Court in the famous DK Basu case. A plea was filed by the Haryana Progressive Farmers Union alleging that during the farmers protest against the Agricultural Ordinances on September 10, 2020, few unknown persons, some in police uniform and others without resorted to lathi charge to dispel the crowd. It is a sad commentary that even after 23 years of the famous DK Basu’s ruling, we still see that its guidelines are still not being implemented by the police in our country.

To start with, this noteworthy judgment authored by Justice Arun Moga of Punjab and Haryana High Court in oral first and foremost sets the ball rolling in para 1 wherein it is observed that, “Petitioner, a farmers Union, inter alia, seeks issuance of a writ in the nature of mandamus, directing the respondents, to ensure that police officers of all ranks while on law and order duty, particularly, during the mass protests/agitations, shall wear proper uniform with visible clear identification, their name tags with designations. Further prayer has been made that all the protestors detained or arrested, ought to be given immediate medical treatment.”

To say the least, para 2 then reveals that, “Learned counsel for the petitioner contends that, on 10.09.2020, when the farmers in Haryana, owing allegiance to the petitioner union, were on a protest rally, few unknown persons, some in police uniform and others without, resorted to lathi charge to dispel the crowd. He relies on the photographs appended with the petition, purported to be of the scene of occurrence. The farmers were protesting against three agriculture ordinances issued by the Government of India. In the said incident, numerous farmers, including many old aged, were allegedly injured by unknown police officials but even the basic medical care was not provided.”

Be it noted, para 3 then further reveals that, “Learned counsel relies on guidelines/safeguards laid down by Apex Court way back in year 1997 in “D.K. Basu v. State of West Bengal” 1997 (1) SCC 416. He contends we are in year 2020 and yet, 23 years later, the said safeguards are not being implemented in State of Haryana. Seeking compliance thereof, petitioner-Union submitted Legal Notice/Representation dated 12.09.2020 (Annexure P-5) but the same has not been adverted till date. Hence, the petition.”

Furthermore, while para 4 mentions “Notice of motion”, we then see how para 5 then discloses that, “Ms. Mamta Talwar, DAG, Haryana, who has joined proceedings on service of advance copy of the petition, appears and accepts notice on behalf of State of Haryana.”

For the sake of clarity, it is then mentioned in para 6 that, “Given the nature of order being passed, there is no necessity to seek any return and/or conduct further proceedings.”

Most significantly, it is then envisaged in para 7 that, “Directions issued by Apex Court and the envisaged procedural safeguards to be observed by police administration per D.K. Basu’s case (supra) are no doubt to be followed/implemented in strict letter and spirit. For ready reference, the relevant is reproduced here under:

“We therefore, consider it appropriate to issue the following requirements to be followed in all cases of arrest or detention till legal provisions are made in that behalf as preventive measures:

(1)         The police personnel carrying out the arrest and handling the interrogation of the arrestee should bear accurate, visible and clear identification and name tags with their designations. The particulars of all such police personnel who handle interrogation of the arrestee must be recorded in a register.

(2)         That the police officer carrying out the arrest of the arrestee shall prepare a memo of arrest, at the time of arrest such memo shall be attested by at least one witness, who may be either a member of the family of the arrestee or a respectable person of the locality from where the arrest is made. It shall also be counter signed by the arrestee and shall contain the time and date of arrest.

(3)         A person who has been arrested or detained and is being held in custody in a police station or interrogation centre or other lock up, shall be entitled to have one friend or relative or other person known to him or having interest in his welfare being informed, as soon as practicable, that he has been arrested and is being detained at the particular place, unless the attesting witness of the memo of arrest is himself such a friend or a relative of the arrestee.

(4)         The time, place of arrest and venue of custody of an arrestee must be notified by the police where the next friend or relative of the arrestee lives outside the district or town through the Legal Aid Organization in the District and the police station of the area concerned telegraphically within a period of 8 to 12 hours after the arrest.

(5)         The person arrested must be made aware of this right to have someone informed of his arrest or detention as soon he is put under arrest or is detained.

(6)         An entry must be made in the diary at the place of detention regarding the arrest of the person which shall also disclose the name of the next friend of the person who has been informed of the arrest and the names and particulars of the police officials in whose custody the arrestee is.

(7)         The arrestee should, where he so requests, be also examined at the time of his arrest and major and minor injuries, if any present on his/her body, must be recorded at that time. The “Inspection Memo” must be signed both by the arrestee and the police officer effecting the arrest and its copy provided to the arrestee.

(8)         The arrestee should be subjected to medical examination by trained doctor every 48 hours during his detention in custody by a doctor on the panel of approved doctors appointed by Director, Health Services of the concerned State or Union Territory. Director, Health Services should prepare such a panel for all Tehsils and Districts as well.

(9)         Copies of all the documents including the memo of arrest referred to above, should be sent to the Illaqa Magistrate for his record.

(10)  The arrestee may be permitted to meet his lawyer during interrogation, though not throughout the interrogation.

(11)  A police control room should be provided at all district and state headquarters, where information regarding the arrest and the place of custody of the arrestee shall be communicated by the officer causing the arrest, within 12 hours of effecting the arrest and at the police control room it should be displayed on a conspicuous notice board.

Failure to comply with the requirements hereinabove mentioned shall apart from rendering the concerned official liable for departmental action, also render him liable to be punished for contempt of court and the proceedings for contempt of court may be instituted in any High Court of the country, having territorial jurisdiction over the matter.

The requirements referred to above flow from Articles 21 and 22(1) of the Constitution and need to be strictly followed. These would apply with equal force to the other governmental agencies also to which a reference has been made earlier. These requirements are in addition to the constitutional and statutory safeguards and do not detract from various other directions given by the courts from time to time in connection with the safeguarding of the rights and dignity of the arrestee.”

In tune with the intent/ratio of the Supreme Court judgment, some of the above said preventive protections/directions, later on, by way of appropriate amendments in the Code of Criminal Procedure, 1973, have also been given legislative mandate.”

While disposing the writ petition, the Punjab and Haryana High Court then observes in para 8 that, “In the premise, without commenting on the merits of allegations/averments contained in the writ petition, the same is disposed of with a request to the Director General of Police, State of Haryana, to once again sensitize police officials of the state, on regular intervals, qua the aforesaid safeguards/parameters, to be followed by police officials while on duty. Regarding other allegations containing in the petitioner herein, the petitioner is at liberty to follow up its representation/legal notice, Annexure P-5, with the competent authority. Disposal of the present writ petition shall not be construed to mean that, if any genuine grievance is made out, the competent authority shall not look into the same. It is expected of the competent authority to pass appropriate orders qua Annexure P-5, in accordance with law, as expeditiously as possible.”

On a final note, it is then held in para 9 that, “In the parting, this court would also like to observe that the Director General of Police, State of Haryana, would do well by directing all the district police heads to ensure that a print out of all the 11 directions, per DK Basu, supra, are prominently displayed in a minimum font of 20 or 22, on a conspicuous notice board at the entrance of every police station in the State. Similar exercise, in fact, ought to be carried out in the State of Punjab as well. Registry is, therefore, directed to convey copy of this order to the Director General of Police, State of Punjab, who is also requested to do the needful, as aforesaid.”

All said and done, it is a no-brainer that the Haryana DGP must implement what the Punjab and Haryana High Court has held so clearly, cogently and convincingly on implementing police guidelines in DK Basu’s case and even the Punjab DGP is urged to do the needful just like Haryana. This will certainly ensure that the old and the weak are not unnecessarily lathicharged by the police which is the crying need of the hour also! No society and no country can ever progress where human rights are not respected in totality and so the human rights have to be accorded the highest priority always in our country. Even the Supreme Court will hear on October 7, 2020 the plea to revive DK Basu’s case to issue fresh guidelines to curb custodial torture. This is a very hot button issue and cannot be kept in cold storage any longer as it directly affects the people and agitates them when they see that the police beats them mercilessly without any strong reason! There can certainly be no denying it!

Sanjeev Sirohi

Petitioner Fails To Explain Any Reason For Leaving Husband : Punjab and Haryana High Court

Imposes Rs 25K Costs On Wife For Frivolous Plea For Protection From Husband and In-Laws

Let me not hesitate to begin by first and foremost stating that I very strongly feel that the time is ripe now for making many radical changes in our penal laws and treating woman on the same platform as man and as is repeatedly demanded most strenuously by many reputed woman organizations also not just in our country alone but all over the world! Just like adultery has been decriminalized unlike earlier when men alone was punishable for imprisonment of upto five years similarly laws must be so amended so as to treat women on par with men in all respects! There can be no denying or disputing it!

No doubt, there is now also a dire need to ensure that if a woman makes false accusations against any men then she is not allowed to get away scot free. She must also be made to pay just like men for her crime of making false accusations against any men whether he is her husband or a friend or a stranger! Not just this, I also very strongly feel that there must be a minimum of two years  imprisonment and maximum of five years imprisonment for anyone whether he/she is a man or a woman who makes false allegations against anyone without substantiating it due to which the reputation of that person affected on whom allegation is made suffers irreparably!

To start with, in a latest, landmark and laudable judgment titled Babita and another Vs State of Haryana and others in CRWP-6765-2020 delivered on September 3, 2020 by Justice Manoj Bajaj of Punjab and Haryana High Court, a cost of Rs 25,000 has been imposed on a woman for failing to explain why she had left her husband against whom she had approached the Court apprehending threat to her life. She failed to give any sound and valid reason for leaving her husband and for apprehending threat to her life. This alone explains why the Punjab and Haryana High Court took strong exception to it and imposed a cost of Rs 25000 on her for doing so!

At the outset, this noteworthy judgment begins by first and foremost pointing out in the opening para that, “By means of this writ petition, the petitioners have prayed for a writ of mandamus by way of directions to the official respondents to protect their life and liberty as they apprehend danger at the hands of private respondent Nos. 5 to 12.”

While elaborating on the facts of the case, it is then pointed out in the next para that, “Briefly, the facts as pleaded in the writ petition are that Babita (petitioner No. 1) was married to Manish (respondent No. 5) in the year 2008 and two children were born out of this wedlock. Petitioner No. 1 was dealt with cruelty by her husband and other members of her in-laws family. She gathered courage ten days back and left the matrimonial home with the help of petitioner No. 2. According to the pleadings, the petitioner No. 1 left the house as per her own will and is living at different places in the District Jhajjar. The petitioners apprehended that the private respondents would cause harm to them, therefore, they had given representations to official respondent Nos. 1 to 3 (Annexures P-1 to P-3) respectively. However, the representations have not been looked into so far and therefore, they have approached this Court for protection of their life and liberty.”

As it turned out, what is next illustrated in the new para of this significant judgment is this: “Learned counsel for the petitioners contend that the life of the petitioner No. 1 had become miserable in her matrimonial home and therefore, there were compelling circumstances for her to leave the company of her husband. It is pointed out that the private respondent Nos. 5 to 12 may cause harm to her and petitioner No. 2, who rendered his help. He prays that the appropriate directions be issued to the official respondents to provide protection to the petitioners.”

More significantly, Justice Manoj Bajaj without mincing any words took potshots at the way the petitions was drafted and said that, “After hearing learned counsel for the petitioners, this Court finds that the writ petition does not contain any pleading much less narration of a cause of action in favour of petitioner No. 2 for filing petition along with petitioner No. 1. Though the petition is verified by both the petitioners by appending their signatures, but no affidavit in support of the petition has been filed by petitioner No. 2. Apart from this, even in the representations submitted to the official respondents, petitioner No. 2 has not portrayed any grievance. Resultantly, this Court finds that the writ petition on behalf of petitioner No. 2 is without any valid cause of action and therefore, qua him, the petition is dismissed on this ground.”
While not finding much substance in the claims made by petitioner No. 1, the Court then points out that, “Considering the pleadings and submissions of learned counsel, this Court finds that petitioner No. 1 also does not deserve any concession, particularly when she  has failed to explain any reason for leaving the company of her husband. Besides, the petitioner No. 1 has given the address of her matrimonial home in the petition, but has claimed that she is residing at different places in district Jhajjar.”

More damningly and most significantly, it is then pointed out by the Court in simple and straight language without mincing any words that, “During the course of hearing, it is not disputed by learned counsel that no complaint has ever been made by petitioner No. 1 either against the husband or any of the other family members of the in-laws. Admittedly, the marriage is 12 years old and the children are also residing with the father. It does not appeal to prudence that after leaving the matrimonial home, the petitioner No. 1 has not contacted her parents, but chose to live alone at District Jhajjar. Except for the bald allegation that respondent No. 5 treated the petitioner No. 1 with cruelty, no supportive material has been placed on record by her. This Court finds that not only the petition for protection is founded on frivolous grounds, but it also amounts to abuse of the process of law. Apparently, the petitioner has not approached the Court with clean hands and has deliberately suppressed the material facts, therefore, this Court finds that she deserves to be saddled with costs.”

As a corollary, Justice Manoj Bajaj of the Punjab and Haryana High Court then finally concludes by observing directly and diligently that, “In view of the above, this Court does not find any reason to exercise the extra ordinary writ jurisdiction and the petition is dismissed with costs of Rs 25,000/- to be borne by petitioner No. 1. It is ordered that the costs be deposited in Bar Council of Punjab and Haryana, COVID-19 Relief Fund, within four weeks from today. Chief Judicial Magistrate, Rohtak shall ensure the recovery and deposits of the costs.”

To sum up, the long and short of this noteworthy judgment is that woman too now must be very cautious before approaching the Courts for relief in any particular case. It goes without saying that now woman must also ensure that she too just like men has approached the court with clean hands. She should no longer hope that like the past, she will immediately get an order in her favour just because she is a woman and normally it is seen that the courts always sympathizes with woman!

But times have changed now and the approach of the courts have also changed substantially! This latest verdict by none other than the Punjab and Haryana High Court is the biggest proof to substantiate this that a woman can no longer hope that she will promptly get relief from courts as courts now very carefully go deep into the concerned case and examine it from very close quarters and only after weighing the pros and cons pronounces its final decision! Now courts don’t hesitate to promptly impose court on the woman if it finds that there is no merit in her allegations, she just attempts to hoodwink the court and the precious time of the court has been wasted on utterly frivolous grounds having no merit at all!

So, without doubt, it is in the own best interest of a woman that she deeply examines all the allegations that she makes and finds it fully genuine and sustainable in any court. If she neglects here then she will have to cough up a huge amount as we see in this leading case.   There can be no denying it!

Sanjeev Sirohi

Not Open To Trial Courts Awarding Life Imprisonment To Further Specify Term Of Incarceration As Remainder Of Natural Life Or Rule Out Remission: Punjab and Haryana High Court

It is quite refreshing and quite reassuring to see that in a recent, remarkable and righteous decision titled “Savitri vs. State of Haryana and others” in Case No. – CRWP-5238-2020 (O&M) delivered on August 19, 2020, a two Judge Bench of the Punjab and Haryana High Court comprising of Justice Dr S Muralidhar and Justice Avneesh Jhingan has reaffirmed in no uncertain terms that the trial courts have no power to order a life sentence to run till natural life or to hold that no remission will be granted. Known for his brilliant, bold and balanced judgments even while as Judge of Delhi High Court – Justice Dr S Muralidhar who authored and headed this notable judgment for himself and Justice Avneesh Jhingan reiterated that this power is solely with the High Court and Supreme Court only in view of the judgment delivered in the Constitution Bench of the Apex Court in the V Sriharan case. Very rightly so!

To start with, this notable judgment sets the ball rolling by first and foremost observing in para 1 that, “This is a petition challenging the order dated 5th June, 2020 of the Divisional Commissioner, Hissar, (‘Divisional Commissioner’) rejecting the Petitioner’s application for temporary release/parole, on the grounds that the trial Court i.e. the Court of the Additional Sessions Judge, Hisar, has by an order dated 16th October 2018 awarded her a sentence of imprisonment for life i.e. whole of her natural life, without any remission, consequent to her conviction for the offences under Sections 302, 343 and 120-B of the Indian Penal Code in FIR No. 429 of 2014 registered at Police Station Barwala.”

On the one hand, para 2 states that, “It has been argued by Mr. Arjun Sheoran, learned counsel for the Petitioner, that the reasons given in the impugned order dated 5th June, 2020 of the Divisional Commissioner are contrary to the law laid down by the Supreme Court in Union of India v. V. Sriharan @ Murugan (2016) 1 SCC 1. In other words, he submitted that the trial Court could not have directed that the Petitioner would not be entitled to any remission and further that her request for temporary release/parole could not have been refused on that ground. He pointed out that the Petitioner had recently lost her husband and her two sons had abandoned her. He referred to the photographs enclosed with the petition to show that the Petitioner’s house needed urgent repairs for which reason she had sought parole for four weeks.”

As opposed to this, it is then stated in para 3 that, “On the other hand, Mr. Ankur Mittal, learned Additional Advocate General, Haryana, to begin with, pointed out that the Petitioner sought parole for a period of four weeks on the ground that her house needed repairs and this request was referable to Section 3 (1) (d) of the Haryana Good Conduct Prisoners (Temporary Release) Act, 1988 (‘Act’) read with Rule 8 (iii) of the Haryana Good Conduct Prisoners (Temporary Release), Rules, 2007 (‘Rules’). He further pointed out that in terms of Rule 4 of the Rules, the Petitioner shall be entitled to apply for parole only after completing one year of imprisonment after conviction and has earned her first annual good conduct remission (AGCR) under the Act. According to Mr. Mittal since the sentence awarded by the trial Court specifically states that the Petitioner should serve life sentence for her entire natural life, without remission, the question of her being eligible for AGCR would not arise and consequently, she would be ineligible to be considered for parole. In this context he referred to a recent judgment dated 3rd July, 2020 of a learned Single Judge of the High Court of Delhi in Sanjay Kumar Valmiki v. State [W.P. (Crl.) 2049 and 682 of 2019], and submitted that the Divisional Commissioner cannot be stated to have committed any error as long as the order on sentence passed by the trial Court, and which is under appeal before this Court, stood.”

As we see, para 4 then reveals that, “On the last date of hearing, Mr. Sheoran, learned counsel for the Petitioner had sought time to place on record copy of an order passed by the Superintendent, Central Jail, Ambala granting parole to one of the co-convicts in a connected FIR.”

Of course, it is then brought out in para 5 that, “The Petitioner has, along with an application CRM-W-731-2020, placed on record a copy of an order dated 7th January, 2020 passed by Superintendent, Central Jail, Ambala granting parole/temporary release to co-convict Pawan in a connected FIR No. 430 dated 19th November, 2020, registered at Police Station, Barwala, Hisar. It has been pointed out that Pawan too had been sentenced to undergo rigorous imprisonment for life without remission till natural death and yet, in his case, not only was parole granted, but in fact, now stands extended as a result of the orders of the High Powered Committee (‘HPC’).”

Be it noted, para 6 then states that, “The above submissions have been considered. To begin with, the applicable statutory provision and the Rules may be referred to. Sections 3 (1) (d) and 10 (2) (d) of the Act which are relevant for the present purpose read as under:

“3. Temporary release of prisoners on certain grounds. – (1) The State Government may, in consultation with the District Magistrate or any other officer appointed in this behalf, by notification in the Official Gazette and subject to such conditions and in such manner as may be prescribed, release temporarily for a period specified in sub-section (2), any prisoner, if the State Government is satisfied that –

……………

(d) it is desirable to do so for any other sufficient cause.”

“10. Power to make rules. The State Government may, by notification make rules for carrying out the purposes of this Act.

(2) In particular, and without prejudice to the generality of the foregoing power, such rules may provide for –

…………….

(d) the conditions on which and the manner in which prisoners may be released temporarily under this Act.”

7. Rules 4 and 8 (iii) of the Rules, which are also relevant, read thus:

“4. Eligibility. Section 10(2)(d). – (1) A prisoner shall be entitled to apply for parole only after he has completed one year of his imprisonment after conviction and has earned his first annual good conduct remission under the Act.”

“8. Sufficient cause. Sections 3(1)(d) and 10(2)(d). – Under Section 3(1)(d) “sufficient cause” may be considered from amongst the following reasons, namely:-

………………

(iii) house repairs/new construction of house owned by the convict parole for house repair shall be granted only once, in three years;””

To put things in perspective, para 8 then envisages that, “It is thus seen that in terms of Rule 4 and 8 (iii) of the Rules read with Section 3 (1) (d) of the Act the earning of the first AGCR, apart from completing one year of imprisonment post conviction, is a must. It is also correct that the sentence awarded to the Petitioner by the trial Court in the instant case is one of “rigorous imprisonment for life, without any remission.” She has been, along with her co-convicts, “sentenced to imprisonment for life of their natural death (sic)” meaning thereby that she should remain in prison for the rest of her natural life. The Divisional Commissioner who passed the impugned order rejecting the Petitioner’s request for parole, was, therefore, constrained to apply Rule 4 in light of the sentence awarded by the trial Court.”

As it turned out, the Bench then points out in para 9 that, “The question whether the trial Court could have passed such a sentence would undoubtedly be one of the questions that would arise for consideration in the Petitioner’s criminal appeal against her conviction and sentence which is pending before this Court. However, it is unlikely that the said appeal, which would have to be heard with the connected appeals of her co-convicts, can be taken up for hearing in the near future. Further, this would mean that till such question is decided, the authorities would be precluded from considering any of her applications for release on parole. It would be unreasonable, in the circumstances, for the examination of this question to be postponed to the hearing of the appeal, particularly since, as will be seen hereafter, the legal position in this regard is clear.”

More significantly, the Bench then makes it amply clear in para 10 that, “The legal position with regard to the power of the trial Courts to award sentences with riders has been made explicit in the Constitution Bench judgment of the Supreme Court in V. Sriharan (supra) in paras 103 to 105, in the following words:

“103. That apart, in most of such cases where death penalty or life imprisonment is the punishment imposed by the trial Court and confirmed by the Division Bench of the High Court, the concerned convict will get an opportunity to get such verdict tested by filing further appeal by way of Special Leave to this Court. By way of abundant caution and as per the prescribed law of the Code and the criminal jurisprudence, we can assert that after the initial finding of guilt of such specified grave offences and the imposition of penalty either death or life imprisonment when comes under the scrutiny of the Division Bench of the High Court, it is only the High Court which derives the power under the Penal Code, which prescribes the capital and alternate punishment, to alter the said punishment with one either for the entirety of the convict’s life or for any specific period of more than 14 years, say 20, 30 or so on depending upon the gravity of the crime committed and the exercise of judicial conscience befitting such offence found proved to have been committed.

104. We, therefore, reiterate that, the power derived from the Penal Code for any modified punishment within the punishment provided for in the Penal Code for such specified offences can only be exercised by the High Court and in the event of further appeal only by the Supreme Court and not by any other Court in this country. To put it differently, the power to impose a modified punishment providing for any specific term of incarceration or till the end of the convict’s life as an alternate to death penalty, can be exercised only by the High Court and the Supreme Court and not by any other inferior Court.

105. Viewed in that respect, we state that the ratio laid down in Swamy Shraddananda [(2008) 13 SCC 767] that a special category of sentence; instead of Death; for a term exceeding 14 years and put that category beyond application of remission is well founded and we answer the said question in the affirmative. We are, therefore, not in agreement with the opinion expressed by this Court in Sangeet and Anr. v. State of Haryana, 2013 (2) SCC 452 that the deprival of remission power of the Appropriate Government by awarding sentences of 20 or 25 years or without any remission as not permissible is not in consonance with the law and we specifically overrule the same.” (emphasis supplied).”

Most significantly, it is then laid down in para 11 that, “Thus, after the judgment of the Constitution Bench of the Supreme Court in V. Sriharan (supra), it is not open to a court inferior to the High Court and Supreme Court, while awarding a sentence of life imprisonment under the Indian Penal Code to further provide for any specific term of incarceration, or till the end of a convict’s life, or to direct that there shall be no remission, as an alternate to the death penalty. That power is available only with the High Courts and the Supreme Court. Consequently, the trial Court, in the instant case, while awarding the Petitioner the sentence of rigorous imprisonment for life could not have added the riders that it should be for the rest of her natural life or that she would not be entitled to any remission.”

To state the obvious, it is then stated in para 14 that, “Therefore, in terms of the law explained by the Constitution Bench of the Supreme Court in V. Sriharan (supra), the trial Court in its order dated 16th October 2018 awarding the sentence to the Petitioner of rigorous imprisonment for life was in error in adding the rider that it would be for the remainder of her natural life and without any remission.”

Furthermore, it is then enunciated in para 15 that, “With this being the clear legal position, the impugned order dated 5th June 2020 passed by the Divisional Commissioner, Hisar rejecting the Petitioner’s application for parole on the above grounds is legally unsustainable and is hereby, set aside. The Petitioner’s application for parole is remitted to the Divisional Commissioner, Hisar to consider afresh the Petitioner’s application for parole in accordance with law. The further ground pointed out by the Petitioner that Pawan, a convict in the related FIR, has been granted parole will be taken note of by the Divisional Commissioner while passing an order afresh on the Petitioner’s application for parole. The fresh order be passed not later than 31st August, 2020 and communicated to the Petitioner forthwith and in any event not later than 2nd September 2020. If aggrieved by such order, it will be open to the Petitioner to seek appropriate remedies available to her in accordance with law. The petition is disposed of in the above terms.”

Before parting, to cap it all, it is then finally held in the last para 16 that, “The Court is informed that notwithstanding the clear legal position explained in V. Sriharan (supra), the trial Courts have been adding riders to orders on sentence passed by them similar to what the trial Court did in this case. Accordingly, the Court directs that a soft copy of this judgment of the Constitution Bench of the Supreme Court in V. Sriharan (supra) be circulated by the Chandigarh Judicial Academy through email to all the judicial officers as well as the Jail authorities in the State of Punjab and Haryana and the Union Territory of Chandigarh.”

To conclude, the sum and substance of this latest, landmark and extremely laudable judgment is that the trial courts have no power to order a life sentence to run till natural life or to hold that no remission will be granted. In other words, the two Judges Bench of the Punjab and Haryana High Court comprising of Justice Dr S Muralidhar and Justice Avneesh Jhingan have made it explicitly clear that it is just not open to trial courts awarding life imprisonment to further specify the term of incarceration as remainder of natural life or to rule out remission completely! Very rightly so! There can be no denying it!

Sanjeev Sirohi

Punjab and Haryana High Court Upholds Medical College’s Decision To Not Admit ‘General Category’ Candidate To ‘Sponsored Category’ Vacancy

          In a latest, landmark and laudable judgment titled “Nipun Sharma vs Post Graduation Institute of Medical Education and Research, Sector 12 Chandigarh through its Director” in Civil Writ Petition No. 10684 of 2020 (O&M) delivered just recently on August 14, 2020, the Punjab and Haryana High Court unequivocally upheld the Medical College’s righteous decision to not admit the ‘general category’ candidate to ‘sponsored category’ vacancy. The two Judge Bench of Punjab and Harayana High Court comprising of Justice Rajeev Sharma and Justice Harinder Singh Sidhu were hearing this case. Justice Harinder Singh Sidhu authored the judgment for himself and Justice Rajeev Sharma.

To start with, it is first and foremost pointed out in para 1 that, “This writ petition has been filed for issuance of writ, order or direction for reading down condition 7(3)(g) as contained in the Prospectus for Session July, 2020 issued by respondent – PGIMER for admission to DM/M.Ch. Courses, wherein it has been provided that no request for change of category applied for shall be entertained after submission of application to the extent that in case no eligible candidate is available under the ‘Sponsored Category’, then eligible candidate if available, under ‘General Category’ be considered and granted admission to the course of Master of Surgery (M.Ch.) (Plastic Surgery) on fulfilling the requisite eligibility conditions.”

What follows next is stated in para 2 that, “Further prayer has been made for setting aside the action of respondent in not considering the candidature of petitioner for said course against vacant seat available under ‘Sponsored Category’ in view of fact that petitioner had applied for direct category.”

To put it succinctly, para 3 then states that, “It is also prayed that the NOC/Sponsorship Certificate (Annexure-P6) issued in favour of petitioner by Department of Health and Family Welfare, Himachal Pradesh be accepted.”

In hindsight, while dwelling on the petitioner’s past academic background, it is then put forth in para 4 that, “The petitioner secured admission in MBBS Course at Indira Gandhi Medical College and Hospital at Shimla (2006-2012) and served in rural area after appointment in 2013 for a total period of 2 ½ years. He was selected for Post Graduate Course in General Surgery in 2017 as a sponsored candidate (2017 to 2019) in PGIMER, Chandigarh and secured 2nd rank in Post Graduation final examination. After completing his Post Graduation successfully with the respondent institution he joined back as a Medical Officer in Deendayal Upadhyay Zonal Hospital, Shimla. Thereafter, the petitioner with an aim to study further and super specialize in the field of Plastic Surgery decided to get admission in the Master of Surgery (M.Ch.) (Plastic Surgery).”

To be sure, it is then envisaged in para 5 that, “As per the Prospectus for the Session July 2020 in the PGIMER for securing admission in Post Graduation or Super Speciality Course i.e. M.Ch., two categories have been provided i.e. (a) General category and (b) Sponsored Category. In ‘General Category’, a candidate can apply directly i.e. without seeking permission of any State authority directly whereas in the ‘Sponsored Category’ only that candidate can apply, who is sponsored by the State Government with which he or she is employed. The sponsorship so made by the State Government is also in the nature of a No Objection Certificate whereby a candidate is authorized by the State Government to do a Super Specialty Course with an undertaking to serve the State Government for a specified period.”

Coming to the chief grievance of the petitioner, it is henceforth stated in para 11 that, “Thus the grievance of the petitioner is that despite there being no other eligible candidate available till date, the candidature of the petitioner, who applied under the ‘General Category’, is not being considered under the ‘Sponsored Category’. In case, the respondent-institution accepts the candidature of the petitioner then not only the petitioner would secure admission in the super specialty course of M.Ch. (Plastic Surgery) but the vacant seat will also get utilized and would not be left vacant.”

As a corollary, it is then further stated in para 12 that, “It was also pleaded by the petitioner that two candidates Dr. Lucky Kumar and Dr. Ashok Garg, who hail from Himachal Pradesh had applied for admission in M.Ch. in Cardiology and Neonatology respectively with respondent. Those candidate also secured their NOC cum Sponsorship certificate after the declaration of the result. They have been granted admission and their NOC cum Sponsorship certificate has been duly accepted. Thus the petitioner has been discriminated against.”

What cannot be left unnoticed is what is then stated in para 14 that, “It has been stated that as per clause 7 (3)(g) of the Prospectus:

“No request for a change of category applied for shall be entertained after the submission of the application”.

Since, Petitioner applied under ‘General Category’, therefore his request for grant of admission on the vacant seat under ‘Sponsored Category’ cannot be considered.”

Having said this, it is then observed in para 20 that, “The examination for admission to the M.Ch. Plastic surgery course was held on 21.06.2020. The result was declared on 26.05.2020. On 30.06.2020 the institute vide notice dated 30.06.2020 uploaded a tentative list of selected candidates wherein petitioner was shown at Waiting list No. 1 in the Direct Category. The petitioner was given the NOC/Sponsorship Certificate on 08.07.2020. Clearly as per condition 7(3)(g) of the Prospectus the request for change of category from ‘General’ to ‘Sponsored’ could not be entertained at a stage when even the result have been declared in view of Clause 7(3)(g) of the Prospectus.”

While adding further weight to its ruling, the Bench then observes in para 21 that, “It has been consistently held in different Full Bench decisions of this Court that prospectus has a force of law and is to be strictly followed. Reference can be made to Amardeep Singh Sahota v. State of Punjab 1993 (4) S.C.T. 328, Raj Singh v. Maharishi Dayanand University 1994 (2) S.C.T. 766, Sachin Gaur v. Punjabi University 1996 (1) S.C.T. 837, Rahul Prabhakar v. Punjab Technical University, Jalandhar 1997 (3) S.C.T. 526, Indu Gupta v. Director of Sports, Punjab 1999 (4) S.C.T. 113 and Rupinder Singh v. The Punjab State Board of Technical Education & Industrial Training, Chandigarh 2001 (2) S.C.T. 726.”

To put things in perspective, it is then noted in para 23 that, “This being the settled legal position the respondent-institution is right in strictly adhering to condition 7(3)(g) of the Prospectus and not entertaining the request of the petitioner for change of category after the last date of application and granting him admission against the vacant seat in the sponsored category.”

As it ostensibly turned out, the Bench then also clearly and convincingly holds in para 24 that, “The contention of the Ld. Counsel that provision 7(3)(g) be read down to the extent that in case no eligible candidate is available under the ‘Sponsored Category’, then eligible candidate, if available, under ‘General Category’ be considered and granted admission to the course of Master of Surgery (M.Ch.) (Plastic Surgery) on fulfilling the requisite eligible conditions also is not tenable.”

No wonder, it is then rightly held in para 27 that, “The respondent-institution in its reply has given valid reasons as to why such a provision has been incorporated and any deviation from it would create an untenable and uncertain situation.” Finally, it is then held in the last para 28 that, “Accordingly, there is no merit in the petition and the same is dismissed.”

In conclusion, the two Judge Bench of the Punjab and Haryana High Court comprising of Justice Rajeev Sharma and Justice Harinder Singh Sidhu  in this notable judgment has clearly and convincingly for cogent reasons explained above has rightly rejected the contention of the petitioner! The arguments forwarded by the petitioner were found to be not tenable by the Chandigarh High Court. The Court also made it amply clear that the respondent-institution is right in strictly adhering to condition 7(3)(g) of the Prospectus and not entertaining the request of the petitioner for change of category after the last date of application and granting him admission against the vacant seat in the sponsored category! Very rightly so!

Sanjeev Sirohi

‘Exceeded Jurisdiction’: Division Bench Of P&H HC Sets Aside Single Bench Order On Administrative Side Passed During Judicial Hearing

At the outset, it must be stated that the Punjab and Haryana High Court just recently on June 30, 2020 in a noteworthy judgment titled Punjab and Haryana High Court through its Registrar (Computerization) v. Zahur Haider Zaidi & Ors. in Case No. : LPA No. 401/2020 (O&M) & Case No. : LPA No. 402/2020 (O&M) has set aside a single Bench order on administrative side passed during judicial hearing. The Division Bench of Punjab and Haryana High Court comprising of Chief Justice Ravi Shankar Jha and Justice Arun Palli while setting aside the order of a single Judge whereby orders pertaining to administrative side of the High Court were passed during hearing of two criminal matters said clearly, categorically and convincingly that, “Running of the High Court on the administrative side cannot be permitted to be taken up by each and every Judge on the judicial side as he thinks fit as that would lead to collapse of the system of the administration of the High Court.” It was also clarified that if any Judge faces technical problem during hearing of cases via video conferencing, the proper course would be to bring the same to the notice of the Registrar General of the High Court.

Needless to say, it is pointed out at the beginning itself that, “With the consent of learned counsel for the parties, the matter is being taken up and heard via video conferencing.” The ball is then set rolling by observing that, “Both these appeals have been filed by the Punjab and Haryana High Court being aggrieved by the orders dated 21.05.2020 and 10.06.2020 passed by the learned Single Judge in CRM-M No. 7051 of 2020 and CRM-M No. 7434 of 2020 directing the High Court to ensure that technical persons are available at the time of hearing of cases through video conferencing and that such technical persons should ensure that every case is available on-line on the computer by downloading the cause list onto the laptop/computer and make an icon on the desktop of that computer as also download the pleadings of all the cases listed on that day onto the computer and make individual icons on the desktop so that the Court can access each case at the click of the mouse. It is also directed that such technical person should ensure that the cases so downloaded are as per the cause list and are properly and accurately uploaded.”

To say the least, the Bench then notes that, “It is submitted by learned counsel for the appellant that the said directions were issued in the criminal matters that were being heard by the learned Single Judge. It is submitted that they have no grievance and have not challenged the orders passed in the criminal cases but are only aggrieved by the directions issued to the High Court regarding making available of technical persons for regular court work.”

While elaborating further, the Bench then observes: “It is submitted that in CRM-M No. 7051-2020, the petitioner was praying for regular bail whereas in CRM-M No. 7434 of 2020, the order passed by the Special Judge, CBI Court, Chandigarh cancelling the bail of the petitioner therein was assailed. Thus, the High Court (appellant) was not a party to those proceedings. However, being aggrieved by the directions/orders that are being assailed in the present appeals, the High Court in the first instance moved two applications in each of the cases; seeking to be impleaded as party and for recalling the order(s) dated 21.05.2020. Vide order dated 10.06.2020, the learned Single Judge impleaded the appellant as party to the proceedings. But the prayer for recalling/modifying the order dated 21.05.2020 has since been declined vide order dated 10.06.2020 and instead it was observed that “as regards recalling/modification of the order, I see no reason to do so because if training had already been imparted to the staff of each Court, it is the duty of such court staff to ensure, in tandem with other officers/officials of the Registry, to upload all case files on to the computers/laptops/i-pads etc. available to each Court”. Thus these appeals.”

More to the point, the Bench then observes that, “Learned counsel for the appellant having taken us through the grounds on which the order dated 21.05.2020 was sought to be recalled as also the grounds of appeal at hands has demonstrated that the impugned directions issued by the learned Single Judge are rather causing practical difficulties and have made it nearly impossible for the High Court (appellant) to regulate and manage the video conferencing process. He submits that the role of the technical staff of the Computer Section of the High Court is confined only to resolving the technical issues concerning connectivity or audio/video disturbances during the hearing. Whereas the task of downloading the cause list, pleadings, making individual icons on the desktop, downloading the cases as per the cause list, has specifically been assigned to the secretarial staff attached to each Court/Judge. Thus, he submits in the wake of the directions issued by the learned Single Judge, the technical staff is now required to take up even the secretarial work. It is, therefore, prayed that the impugned directions be set aside.”

Be it noted, the Bench then brings out that, “It is informed that the number of technical staff available in the High Court is very limited whereas adequate and sufficient trained staff including Special Secretary/Secretary/Private Secretary/Judgment Writer/Stenographers (stenography line) and Special Secretary/Court Secretary/Reader/Superintendent (Reader Line) and Law Researchers have already been provided to each Court/Judge and they have also been directed to ensure that the Court is able to take up the video conferencing without any hindrance by downloading the paper books, making icons on the desktop and ensuring downloading of the cause list in accordance with the serial numbers notified. It is the secretarial staff that is responsible for the aforesaid task and has to be utilized for that purpose and not the technical staff of the High Court.”

Importantly, it is also clarified by the Bench that, “Thus, the secretarial staff attached to each Court/Judge that consists of Special Secretary/Secretary/Private Secretary/Judgment Writer/Stenographers (stenography line) and Special Secretary/Court Secretary/Reader/Superintendent (Reader Line) and Law Researchers is obliged to ensure that the court proceedings through video conferencing are held unhindered. Undoubtedly, the technical staff of this Court are fully skilled/trained to deal with any technical snag/issue during the video conferencing but not equipped to manage the procedural functioning of the Court which is a specialized task of a regular court staff. In the circumstances, we are of the considered opinion that the impugned directions deserve to be set aside.”

More importantly, the Bench then observes that, “We are also impelled to observe that of the two matters listed before the learned Single Judge, in one regular bail was prayed for and in the other the order of cancellation of bail was under challenge in which the issues regarding the problems arising in the video conferencing were neither involved nor raised. In such circumstances, if any inconvenience was faced by the learned Single Judge owing to lack of any technical/secretarial assistance, the proper course that should have been adopted was to bring the problem to the notice of the Registrar General of this Court for its resolution.”

Most importantly, the Bench then makes it a point to say clearly, categorically and convincingly that, “We are of the considered and firm opinion that the learned Single Judge exceeded his jurisdiction in issuing directions purely relating to the administration of the High Court “in a criminal matter” as the extraordinary and inherent powers of the Court cannot be invoked in purely administrative matters. Judicial powers cannot be invoked to run the administration of the High Court, which task vests in the Chief Justice or in the Full Court of the High Court and is regulated by Rules and instructions issued in that regard. Running of the High Court on the administrative side cannot be permitted to be taken up by each and every Judge on the judicial side as he thinks fit as that would lead to collapse of the system of the administration of the High Court.”

Going ahead, it is then held that, “Moreover, as the issue in respect of which the impugned directions have been issued was neither subject matter of challenge nor within the roster assigned to the learned Single Judge and therefore, the learned Single Judge exceeded the jurisdiction vested in him rendering the directions nonest. The law in respect of the issue has been clarified by the Supreme Court in the case of Campaign for Judicial Accountability and Reforms v. Union of India and another (2018) 1 SCC 196.”

Finally, it is then held that, “In the circumstances, the impugned directions issued by the learned Single Judge vide orders dated 21.05.2020 and 10.06.2020 to the extent that the technical staff of the High Court has been directed to take up the secretarial work are set aside. It is made clear that the responsibility as delineated in the preceding paragraphs about the technical staff shall be followed and implemented by the Registry subject to any modification or change that shall be caused by orders passed subsequently on the administrative side. Both the appeals are accordingly allowed and stand disposed of in the above terms.”

No doubt, all the High Court Judges must always pay heed to what the Division Bench of Punjab and Haryana High Court has held so explicitly in this leading case! This will save them from getting their order overturned by a Division Bench as we see in this leading case! No denying or disputing it!

Sanjeev Sirohi

Mere Aggressive Behaviour Of Wife Not A Ground Of Divorce: Punjab and Haryana High Court

It has to be candidly conceded by all of us that a Division Bench of Punjab and Haryana High Court comprising of Hon’ble Mr Justice Rakesh Kumar Jain and Hon’ble Mr Justice Harnaresh Singh Gill in a latest, landmark and extremely laudable judgment titled Ravinder Yadav Vs Padmini @ Payal in FAO-M-126-2019 (O&M) delivered on May 17, 2019 has categorically and convincingly held that mere aggressive behaviour and sadness of mood of wife does not mean that the wife is spoiling the atmosphere of her matrimonial home. Thus we see that the Punjab and Haryana High Court in this case dismissed a matrimonial appeal filed by a husband. The Division Bench was considering an appeal filed by a man against the Family Court order which dismissed his petition.

                       While the ball is set rolling in the first para of this notable and praiseworthy judgment authored by Hon’ble Mr Justice Harnaresh Singh Gill for himself and Hon’ble Mr Justice Rakesh Kumar Jain wherein it is pointed out that, “By way of present appeal, appellant-Ravinder Yadav has assailed the judgment and decree dated 03.04.2019 passed by the District Judge, Narnaul, vide which his petition filed under Section 13 of the Hindu Marriage Act, 1955 (for short ‘the Act’) against respondent-Padmini @ Payal was dismissed.” The appellant thus wanted the Division Bench of High Court to review the judgment and decree which went against him!

                        To recapitulate, it is then pointed out in the next para that, “The facts which need to be elaborated are that the marriage of the appellant and the respondent was solemnized on 09.03.2015 as per Hindu rites and ceremonies. The marriage was consummated but no child was born out of the said wedlock. As per the allegations in the petition, the respondent-wife always imbibed with independent and modern thoughts posing herself to be a broad minded lady. Right from the next day of marriage, respondent started quarrelling with the appellant and his parents and threatened them to do everything under her command. The respondent flatly refused to perform household work and alleged that if she was compelled to do so, she would commit suicide and create problems for appellant and his family members. It was alleged that the respondent used to consume liquor and take drugs and had illicit relations with one Kuldeep Shekhawat. She was in the habit of leaving matrimonial home without informing the appellant and his family members and on asking, she used to say that nobody was allowed to interfere in her personal life. The respondent often used to make phone calls on mobile No. 9521677437 (at some places the mobile number is mentioned as 9621677437) and whenever the appellant called her she would remain busy on whatsapp and facebook with strangers and friends. The respondent even refused to share bed with the appellant which had caused mental cruelty to him. As per the appellant, the respondent left her matrimonial home on 17.04.2015 without informing him and his family members. On 06.05.2015, her father along with other respectable came to the appellant’s place and used bad words against him and his family members. The respondent also broke the Mangalsutra (Necklace) in the presence of the Panchayat members and flatly refused to live with the appellant as his wife and left her matrimonial home on 13.05.2015.”

                                          Needless to say, it is then pointed out in the next para that, “On the other hand, the respondent-wife, though admitted the factum of marriage yet specifically denied that she had ever raised her voice, rather asserted that she had followed all the social and religious customs in her matrimonial home. She alleged that the appellant is M.Sc., M.Ed. qualified and was doing job in a private school. It is also alleged that the appellant used to pressurize the respondent to bring more money from her parents and asked her parents to sell their land, but the respondent and her father did not accede to such demand of the appellant. It was the appellant and his parents, who harassed the respondent physically and mentally and used to call a Tantrik for doing black magic upon her. She had denied the factum of attempting to commit a suicide. She used to prepare the food for the appellant and his family members at proper time and used to serve the guests as well. It was also denied by the respondent that she was a wanderer or used to consume liquor or drugs. The incident dated 06.05.2015 was admitted by the respondent as her family members came to drop her back to her matrimonial home. However, she was never accepted by the appellant and his family. They tortured her and ultimately she was turned out of her matrimonial home.”

                            As things stand, it is then pointed out in the next para that, “In the present case, issues were framed on 09.05.2017 and the appellant had examined as many as five witnesses along with his mother, namely, Bhatteri Devi as PW-2.”

                   Moving on, it is then illustrated in the next para that, “On the other hand, respondent had appeared into the witness box as RW-1 along with his father and other witnesses. After taking into consideration the evidence on record, the petition under Section 13 of the Act was dismissed on the ground that marriage was solemnized on 09.03.2015 and the respondent-wife had been residing with her parents since 13.05.2015 and the present petition was filed by the appellant-husband on 25.02.2016. It was, thus, held that the allegations of cruelty remained unsubstantiated.”

                                          After hearing both sides, it is then held in the next para that, “We have heard learned counsel for the parties and are of the view that there is no infirmity and illegality in the impugned judgment and decree passed by the trial Court.”

                                    Furthermore, it is then held in the next para that, “PW-3, namely, Vartika, in her cross examination had testified that the respondent was having illicit relations with one Kuldeep Shekhawat and his name was told to her by her friend Raveena. This witness further stated that she had come in contact with the respondent while studying and staying as a Paying Guest and had made a complaint to the owner of the P.G. regarding the behavior and conduct of the respondent-wife. Neither the owner of the P.G. stepped into the witness box to throw light on the said aspect nor any link evidence in this regard was led. Thus, the oral evidence of Vartika, PW-3 will not advance the cause of the appellant/petitioner.”

                                        What’s more, it is then pointed out in the next para that, “Though it is an admitted fact, as it had come through oral testimony, that the respondent-wife has been residing separately since 13.05.2015, but to our mind, it is the appellant, who alone is instrumental in ensuring that the respondent-wife stays away from her matrimonial home and there is no intentional cessation of cohabitation on the part of the respondent-wife nor there is any intention to desert the appellant-husband.”

                                         It cannot be lost on us that it is then made clear in the next para that, “The statutory period of two years of desertion, as envisaged under the Act, immediately preceding the presentation of the petition, had not expired, before the filing of the divorce petition by the appellant. At this stage, it would be relevant to consider Section 13(ia) and (ib) of the Act which reads as under:-

13. Divorce

(1) Any marriage solemnised, whether before or after the commencement of this Act, may on a petition presented by either the husband or the wife, be dissolved by a decree of divorce on the ground that the other party

[(i) xxx          xxx               xxx

[(ia) has after the solemnization of the marriage, treated the petitioner with cruelty; or

[(ib) has deserted the petitioner for a continuous period of not less than two years immediately preceding the presentation of the petition; or”

                                        To be sure, we thus see that it is then laid down explicitly in the next para that, “In Section 13(1)(ib) of the Act, it has been specifically laid down that desertion is to be considered for the continuous period of not less than two years, immediately preceding the presentation of the petition.”

                                         As it turned out, it is then held in this new para that, “In the case in hand, the respondent-wife has allegedly left her matrimonial home on 13.05.2015 and the present petition was filed on 25.02.2016, thus, on the date of filing of the divorce petition, the statutory period of two years had not expired. Thus, the present divorce petition had rightly been rejected on this count by the Court below.”

                                       To say the least, it is then held that, “Thus, the relief of divorce was denied because the legislation in its wisdom had framed the Act on the basis of “fault theory” and “break down theory” which was not proved in the present case.”

                                     To put things in perspective, it is then pointed out that, “In Rajni Goyal versus Amit Kumar 2015 (2) R.C.R. (Civil) 871, the Hon’ble Court has held that “adultery is a serious charge and has to be proved beyond reasonable doubt. But at the same time it is difficult to procure direct evidence for procuring such a charge. It is only from the circumstances that an inference can be drawn that the spouse against whom complaint has been made was leading an adulterous life”.”

                          More importantly, it is then held that, “To our mind, in the present case there is ordinary wear and tear of the married life of the parties, which happens in day to day life. Mere aggressive behavior and sadness of mood of wife does not mean that the wife is spoiling the atmosphere of her matrimonial home.”

                          To put it succinctly, it is then aptly pointed out that, “It has been held by the Apex Court in Samar Ghosh versus Jaya Ghosh, 2007 (2) R.C.R. (Criminal) 515 that the concept of cruelty differs from person to person, depending upon his or her upbringing, level of sensitivity, educational, family and cultural background, financial position, social status, customs, traditions, religious beliefs, human values and their value system. Therefore, it is essential for the party claiming the relief to prove that a particular conduct or behaviour has resulted into cruelty to him or her. The aggrieved party has to make specific case that the conduct of the spouse had caused cruelty to him/her. It is for the Court to weigh the gravity of alleged cruelty. It has to be seen whether the conduct was such that no reasonable person would tolerate it.”

                           Finally and perhaps most importantly, it is then very rightly held that, “In the present case, no cogent evidence has been placed on record that the behaviour of respondent is uncalled for. Regarding relationship of respondent-wife with Kuldeep Shekhawat the same had not been proved and above all Kuldeep Shekhawat had not been arrayed as party in the divorce petition so that he could join the proceedings and some light could have been thrown on the allegation. As a matter of fact adultery cannot be considered without impleading the alleged adulterer as per Rule 10 of Hindu Marriage (Punjab) Rules, 1956. Rather unsubstantiated and uncorroborated testimony associating the respondent with adulterer has caused mental cruelty to the respondent. Thus nuptial knots cannot be allowed to be broken on these types of unfounded allegations of cruelty, physical or mental. In view of the above, we do not find any illegality or infirmity in the order passed by the learned trial Court, which may warrant interference by this Court in the present appeal. Hence, the present appeal is dismissed. No order as to costs.”

                                In conclusion, the Division Bench of Punjab and Haryana High Court has made it explicitly clear in this latest, landmark and extremely laudable judgment that mere aggressive behaviour of wife cannot be a ground for divorce. There have to be strong grounds on which divorce can be granted. Just mere allegations of adultery also are not sufficient to constitute a ground of divorce. It must also be proved beyond a shadow of doubt for it to be admissible in a court of law. It was held in this case that the husband failed to produce cogent evidence against the wife and therefore his petition for divorce on the ground of cruelty was rejected! It was also very rightly held that mere aggressive behaviour wife and sadness of mood of wife does not mean that the wife is spoiling the atmosphere of her matrimonial home! Very rightly so!

Sanjeev Sirohi, Advocate,

s/o Col BPS Sirohi,

A 82, Defence Enclave,

Sardhana Road, Kankerkhera,

Meerut – 250001, Uttar Pradesh.

Homosexuality-the legal arguments against it

safder kazmi

377 IPC DOESN’T  VIOLATE THE PRINCIPLE OF EQUALITY ON THE BASIS OF SEX ENSHRINED IN ARTICLE 14 AND 15 OF THE CONSTITUTION OF INDIA.

Article 14 of the Constitution of India guarantees two rights that the State shall not deny:

  i.            Equality before the Law

ii.            Equal protection of laws within the territory of India.

The former would mean that irrespective of any discrimination, law has to be absolutely applicable in the same manner to all. This has been an adoption of rule of law in Britain, the theory propounded by A.V. Dicey.[1] And the latter, postulates the application of the same laws alike and without any discrimination to all persons similarly situated. It denotes equality of treatment in equal circumstances.[2] In order to violate the principle of equality enshrined in Article 14 of the Constitution of India, law has to discriminatory in nature in similar circumstances. However, § 377 by a bare perusal does not qualify to be in the arena of such violation because it is applicable only to whoever voluntarily commits the said offences. Section  377 is in conformity and is in furtherance of Article 14 as it is applicable on all without any remotest discrimination.

Article 14 forbids class legislation; it does not forbid reasonable classification of persons, objects and transaction by the legislature for the purpose of achieving specific ends. Classification should be reasonable, should fulfil the following two tests:

i.        That the classification is founded on an intelligible differentia and

ii.      That differentia has a rational relation to the object sought to be achieved by the impugned legislative or executive action. [3]          

In the light of preceding paragraph, it is noteworthy to bring to the light the fact that § 377, IPC has been incorporated in the statute as a curative and punitive provision in reference to sexual offences which are otherwise not included in any other section. Therefore, it can be rightfully interpreted as a residuary clause for crime related to sexual offences. Therefore, the provisions of § 375-§ 377 have to be read together and not separately if the true intention of the legislation has to be brought to light. Justice Parke has held that in the construction of a statute to adhere to the ordinary meaning of the words used, and to the grammatical construction, unless that is at variance with the intention of the legislature to be collected from the statute itself, or leads to any manifest absurdity or repugnance, in which case the language may be varied or modified so as to avoid such inconvenience but no further.[4]

Thus, while enacting this Section, did not intend to include consensual and private sex within the ambit of § 377, IPC. Justice Scalia has observed that consensual sodomy, like heterosexual intercourse, is rarely performed on stage.  If all the Court means by acting in private is on private premises, with the doors closed and windows covered, it is entirely unsurprising that evidence of enforcement would be hard to come by.  (Imagine the circumstances that would enable a search warrant to be obtained for a residence on the ground that there was probable cause to believe that consensual sodomy was then and there occurring.)  Surely that lack of evidence would not sustain the proposition that consensual sodomy on private premises with the doors closed and windows covered was regarded as a fundamental right, even though all other consensual sodomy was criminalized.[5]

Therefore a  statutory provision has to be interpreted in such way that the reasonableness is judged with reference objectives of legislation and not cosmetic moral considerations.[6]

 

LEGALIZING HOMOSEXUALITY BY STRIKING DOWN § 377 IPC TO SUCH EXTENT INFRINGES RIGHT TO HEALTH AS EMBODIED IN ARTICLE 21 OF THE CONSTITUTION.

A  grand step was taken by the Court by expanding the scope of Article 21 of the Constitution of India it argued that lifein Article 21 does not mean merely animal existence but living with human dignity.[7] Therefore, the act of homosexuality itself is animal like and does not reasonably qualify to be within the ambit of natural and legitimate acts. It has been scientifically proved on various occasions that it becomes a cause of severe health hazards, and it the duty of the State to protect individuals from such activities which might hazardous to their health and the health of the society.

The Federal Centres for Disease Control and Prevention (CDC) and other health agencies report a disturbing increase in high-risk sexual behaviours and substance abuse among some groups of MSM in recent years.[8] Media reports also confirm a trend in dangerous behaviours among MSM, such as:

i.            Bug chasing. Another disturbing phenomenon among some MSM involves HIV-negative MSM who actively seek HIV infection by engaging in high-risk sexual activities with infected male partners. A 2003 Rolling Stone article brought national attention to “bug-chasing,” which the article described as “an intricate underground world that has sprouted, driven almost completely by the Internet, in which men who want to be infected with HIV get together with those willing to infect them.”[9] Carlos, a “bug chaser” who claimed to have had several hundred sexual partners and said he regularly had sex with three or four HIV-positive men a week, told Rolling Stone, “I know what the risks are…But I think it turns the other guy on to know that I’m negative and that they’re bringing me into the brotherhood. That gets me off, too.” [10]

ii.            Physical Damage: Homosexual men who engage in anal sex are at a significantly high risk for numerous health problems. The high-risk nature of anal sex is simple: the rectum was not designed for sexual intercourse. According to amfAR, “compared to the vagina, rectal tissue is much more vulnerable to tearing during intercourse and the larger surface area of the rectum/colon provides more opportunity for viral penetration and infection.”[11]In her book, Epidemic, Dr. Meg Meeker, a pediatrician, writes: “The anus opens into the rectum…which is not as well suited for penile penetration as the female vagina is. Both the anus and the rectum have rich blood supplies, and their walls, thinner than the walls of the vagina, are easily damaged. When penetration occurs, it’s easier to tear the blood vessels, which in turn increase the risk of acquiring or receiving an infection…”[12]

iii.            Anal Cancer: Homosexual men are also at an increased risk for anal cancer. [13]According to the American Cancer Society, risk factors for anal cancer include: Human papilloma virus (HPV), which causes anal and/or genital warts; multiple sexual partners; and anal intercourse.[14] Due to concerns about anal cancer, some health professionals now recommend anal Pap Smears for MSM.[15]

iv.            STDs: Compared to heterosexual men, MSM are at an increased risk of contracting a number of dangerous STDs, including HIV/AIDS. According to the GLMA, these STDs include: “urethritis, proctitis, pharyngitis, prostatitis, hepatitis A and B, syphilis, gonorrhea, chlamydia, herpes, genital warts and HIV infection.”[16]

v.            HIV/AIDS: Despite efforts by gay activists to disassociate homosexuality from the spread of AIDS, homosexual behavior, particularly among males, is associated with an increased risk of HIV. Although HIV can be transmitted through both vaginal and anal intercourse, receptive anal sex without a condom is at least 10 times more risky for contracting HIV than vaginal sex without a condom, according to amfAR.[17]

the word ‘expression’ occurring in Article 19(1) (a) of the Constitution canNOT  be read disjunctively from the word ‘speech’ and HENCE CAN NOT  include expression of sexual orientation of a citizen

Article 19 (1) of the Constitution of India reads as follows:

(1) All citizens shall have the right:

(a) To freedom of speech and expression;

(b) To assemble peaceably and without arms;

(c) To form associations or unions;

(d) To move freely throughout the territory of India;

(e) To reside and settle in any part of the territory of India…………

If the intention of the legislation was to read the two words disjunctively, then the same would have been separated while the Constitution was being drafted. The Hon’ble Supreme Court has held that the intention of the legislature is primarily to be gathered from the language used which means that attention should be paid to what has been said.[18] Furthermore, the Hon’ble Supreme Court has also held that a construction which requires for its support addition or substitution of words or which result in rejection of words as meaningless has to be avoided completely.[19] It should be observed for better interpretation of this Article that the legislation has made a deliberate effort of using the word “And” in Article 19 (1) (a) and not “or” as it has been used in Article 19 (1) (c) and Article 19 (1) (g). Thereby, this means that “And” is a compulsive inclusion and its exclusion would change the meaning and destroy the essence of the Article.

The scope of Article 19 (1) (a) has rightfully been expressed by this Court that the right to express one’s conviction’s and opinions freely, by word of mouth, writing, printing, picture or in any other manner (addressed to the eyes or the ears). It includes the expression of one’s idea by any “visible representation”, such as by gestures or the like.[20] Therefore, that Sexual orientation cannot be legitimately interpreted to be within the purview of Article 19 (1) (a).

Relying on the above mentioned points, the words freedom of speech and expression have been written together and separating them for a wider interpretation would be absurd and unjust. In this regard, Jervis, C.J has rightfully held that ifthe precise words are plain and unambiguous, then the Court is bound to construe them in their ordinary sense, the failure of which will leadto absurdity or manifest injustice.[21] Thus, the intention of the legislation was to read the words together and therefore it would ultimately lead to manifest injustice if such a wide interpretation is taken.

The Constitution strikes a balance between individual liberty and social control. A Division Bench of the Hon’ble Delhi High  Court has held on the above mentioned balance by holding that Article 19 of the Constitution gives a list of individual liberties and prescribes in the various clauses the restraints that may be placed upon them by law so that they may not conflict with public welfare or general morality.[22]

sexual intercourse of the same sex is against such established and recognised norms of human behaviour that indulgence in it may justify curtailment of individual liberty by the State within parameters of a reasonable restriction on grounds of public decency or morality under Article 19(2).

India is a diverse nation having a rich and multi-cultural heritage accommodating a majority of the religions in the world.

Our Constitution guarantees in its Preamble that India is a secular state and thus, implying that the religious sentiments of all the cultures in this community are to be respected.[23]Secularism is a basic feature of the Constitution,[24] Rule of Law[25] and the Rule of Equity.[26] Therefore,a legislation cannot be made or amended which contravenes any of the said norms of any religious community existing in our country. Acts of homosexuality are condemned both in text and context by more than one religion being practiced in our country. The Srimad Bhaagvad Gita states that a Hindu marriage joins two individuals of opposite sex for life, so that they can pursue dharma (duty), artha (possessions), kama (physical desires), and moksa (ultimate spiritual release) together. It also joins two families. Furthermore, the Quran condemns homosexuality by stating that Of all the creatures in the world, will ye approach males, “And leave those whom Allah has created for you to be your mates? Nay, ye are a people transgressing“[27] and even prescribes a punishment for such acts.[28] Even the canon law prohibits such acts.

Therefore, reasonable restriction is imposed in order to prevent that religious sentiment from being hurt of any particular community. The Hon’ble  Delhi High Court has held that the words ‘reasonablerestriction’ corresponds to the societal norms of decency, e.g, respect of rights or reputation of others, protection of national security or of public order, or of public health or morals etc.[29]

In its judgement, the Hon’ble Punjab and Haryana High Court have referred to Lord Devlin to emphasize the need of morality in the society. The Hon’ble Court has said that Lord Devlin appears says that society has the right to enforce morality as such on the ground that a shared, morality is essential to society’s existence, it is not at all clear that for him the statement that immorality jeopardizes or weakens society is a statement of empirical fact. It seems sometimes to be an a priori assumption, and sometimes a necessary truth and a very odd one. The most important indication that this is so is that, apart from one vague reference to “history” showing that the loosening of moral bonds is often the first stage of disintegration, no evidence is produced to show that deviation from accepted sexual morality, even by adults in private, is something which, like treason, threatens the existence of society.[30]

The Supreme Court has held that if the Court finds on scrutiny, that the law has not overstepped the constitutional limitations, the court will have to uphold the law, whether it likes it or not.[31]Furthermore, the Hon’ble Supreme Court has even held that if a law deals equally with members of a well-defined class, it is not obnoxious and it is not open to the charge of denial of equal protection on the ground that it has no application to the other persons.[32]

Furthermore, the Hon’ble Supreme Court of the United States of America has held that the right to engage in homosexual acts is not deeply rooted in any country’s history and tradition.[33] American Courts have also held that countless judicial decisions and legislative enactments have relied on the ancient proposition that a governing majority is belief that certain sexual behavior is immoral and unacceptable constitutes a rational basis for regulation.[34]In relevance to the instant matter, it has been held by that engaging in homosexual acts outside the scope of marriage is not protected by any constitutional mandate.[35]The Hon’ble Supreme Court of the United States of America has observed that State laws against bigamy, same-sex marriage, adult incest, prostitution, masturbation, adultery, fornication, bestiality, and obscenity are likewise sustainable only in validation of laws based on moral choices.[36]



[1]Wade and Phillips, Constitution and Administrative Law, 87 (1977)

[2]Mohd. Shaheb Mahboob v. Dy. Custodian, AIR 1961 SC 1657

[3]Ajay Hasia v. Khalid Mujib Sehravardi, AIR 1981 487

[4] Becke v Smith (1836) 2 M&W 195

[5]Lawrence v. Texas, 539 U.S. 558 (2003)

[6] R.K. Garg v. Union of India, (1981) 4 SCC 675

[7]Francis Coralie v. Administrator, Union Territory of Delhi, AIR 1981 SC 746

[8]CDC, “HIV/AIDS Among Men Who Have Sex With Men,” CDC HIV/AIDS Fact Sheet, May 2007

[9]Freeman, Geoffery, “Bug Chasers: The men who long to be HIV+,” Rolling  Stone magazine, February 6, 2003.

[10]Ibid

[11]CDC, “HIV/AIDS Among Men Who Have Sex With Men,” CDC HIV/AIDS Fact Sheet, May 2007

[12]Meeker, Meg, MD, “High-Risk Sex,” Epidemic: How Teen Sex is Killing Our Kids, Regnery Publishing, Washington, DC: 2002, pgs. 152.

[13]GLMA, “Lesbian, Gay, Bisexual and Transgender Health: Findings and Concerns,” Journal of the Gay and Lesbian Medical Association, Vol. 4, no. 3 (2000), pg.111.

[14]American Cancer Society, “What are the risks of anal cancer,” All About Anal Cancer, www.cancer.org.

[15]GLMA, “Lesbian, Gay, Bisexual and Transgender Health: Findings and Concerns,” Journal of the Gay and Lesbian Medical Association, Vol. 4, no. 3 (2000), pg.120.

[16] Ibid

[17]amfAR, “HIV Prevention for Men Who Have Sex With Men,” Issue Brief  #4, June 2006, pgs. 1-2.

[18] Gwalior Rayon Silk Mfg. Co. Ltd. v. Custodian of Vested Forests, AIR 1990 SC 1747

[19] Shyam Kishori Devi v. Patna Municipal Corporation, AIR 1966 SC 1678

[20]Romesh Thapar v. State of Madras, (1950) SCR 594

[21] Abley v. Gale, 20 L.J.C.P (N.S) 233 (1851); Arul Nadar v. Authorised officer, Land Reforms, (1998)7SCC 57

[22]A.K. Gopalan v. State of Madras, (1950) SCR 88 (253-54)

[23] See The Preamble, The Constitution of India, 1950

[24]Shri Adi Visheshwara of Kashi Vishwa Nath Temple, Varanasi v. State of U.P, (1997) 4 SCC 606

[25]High Court of Judicature at Bombay v. Shirish Kumar Rangrao Patel, (1997) 6 SCC 379

[26]Indira Sawhney v. Union of India, (2000) 1 SCC 168

[27] Qur’an (26:165-166)

[28] Qur’an (4:16) – “If two men among you are guilty of lewdness, punish them both.

[29]Director General, Directorate General of Doordarshan v. Anand Patwardhan, AIR 2006 SC 3346

[30] Kailash Alias Kala v State of Haryana, 2004 CriLJ 310

[31] Anwar v. State of J&K, AUR 1971 SC 337(388); Arunachal v. Khudiram, (1994) Supp (1) 615, para 75

[32]Chiranjit Lal v. Union of India, (1950) SCR 869; State of Bombay v. Balsara, (1951) SCR 682 (708-09)

[33]See Bowers v.  Hardwick, 478 U. S. 186(1986)

[34]Williams v.  Pryor, 240 F. 3d 944, 949 (CA11 2001)

[35] Owens v. State, 352 Md. 663, 683, 724 A. 2d 43, 53 (1999)

[36]Supra Note 14

Crime & Punishment

CRIME on the OFFENCE JUSTICE on the DEFENCE

India, no doubt, is a great country. It has a great system of criminal jurisprudence in which an individual/group has a right to commit a crime, heinous included, to run away from the scene of crime and, if caught, the right to claim he is innocent. This exactly is what we call ”choriaurseenazori”.

There are a few instances in which people in the heat of moment have committed crime, even of murder, and then they have voluntarily surrendered before police or courts confessing their crime, even before the police had actually got a whiff of it. At the same time, they have their unchallenged inherent right to resile from their confessional statements in the heat of moment and to claim innocent denying their confession.

Our law also provides alibis and chances to prove themselves juvenile, under the influence of intoxication, depression, provocation or other mitigating circumstances to prove their innocence or seek punishment lesser stringent than the extent of their crime due under the law.

Even when a case of murder is proved against a person, he can be sentenced to capital punishment only, as the Supreme Court has decreed, if the case falls in the category of ”rarest of the rare” in the opinion of the concerned learned court.
On the one hand, we all – the executive, the legislature, the judiciary, the media and the people – are one in the need for dispensing quick justice to the victims of the heinous crime of rape and on the other, our courts are showing leniency and consideration to the accused. The latest is the case in which the Supreme Court (SC) on January 29, 2013 ruled that the man who had raped his minor daughter and killed her and his wife and who had been sentenced to death, need not be sent to the gallows ”as the crime did not fall under the rarest of rare cases”. The SC further said that ”his reformation is not foreclosed in this case.”

An SC double bench set aside the death sentence, awarded by trial court and upheld by the Punjab and Haryana High Court, saying that the convict was feeling frustrated because of the attitude of his wife and children.

The history of the conduct of the convict Mohinder Singh speaks otherwise and does not inspire confidence that ”his reformation is not foreclosed”. He committed the crime while on parole from jail where he was undergoing a 12-year sentence for raping his 12-year-old daughter. In January 2005, he came out on parole and killed his wife who was a witness to the rape, and the daughter he had raped.

A father raping his daughter and killing her and his wife, a witness to the crime, needless to say, is not a daily routine but a rarest of the rare heinous crimes in India. That the convict was ”feeling frustrated because of the attitude of his wife and children” does not mitigate the intensity of his crime. On the contrary, it only shows that the father did not appear to be ashamed and repentant for the sin he committed and instead wanted his wife and daughter to be a conspirator in his crime and save him by telling a lie in the court. His conduct during his parole itself belies the hope that ”his reformation is not foreclosed in this case”.

Juvenile hardcore criminal
No less astonishing is the report that the ”most brutal” accused in the gang-rape and killing of a paramedical student Nirbhaya in New Delhi last month has been declared a ”minor” by the Juvenile Justice Board on January 29 on the basis of the date of birth on his school certificate and ordered his trial under the Juvenile Justice (Care and Protection of Children) Act. The Board also rejected the plea of the Police for bone certification test of the accused to determine his age.

This suspicion got further strengthened by a Times of India story which on February 01 quoted the mother of the accused who claims to be juvenile saying: ”I have no idea regarding either the day or date of admission. I just went to the school and told the teacher that this is my child, he is five years of age, write down his name. They started teaching him after that.” And yet our Juvenile Justice Board has blind faith in the school certificate that shows the age of the accused.

The decision based on ”school certificate” is open to question because everyone knows that in India, for various reasons, parents of children have been getting birth certificates of their children showing an age less than the actual one. The ”bone certification” would have been more scientific and reliable.

It is ironic that a person who allegedly committed one of the most heinous crimes, which even a hardened criminal would have dreaded to perform, should be dispensed Care and Protection reserved for juveniles. We need to distinguish between juvenile delinquency and juvenile crime. Juveniles have been dispensed care and protection because their crime was not heinous but could be considered a delinquency like a child playing with a knife accidently killing another child or pushing a fellow child without realizing that his act could cost a life or a child playing with fire incidentally causing a great inferno resulting in huge loss of life and property. These may be crimes but seem to have been inadvertently committed with no set motive. But that is not the case of this juvenile accused in Nirbhaya gang-rape and murder. One has to go by the enormity of the heinous crime and not by the age of the culprit.

This gives another indication of the kind of justice and the criminal jurisprudence we have. This stands in the way of justice. It fails to punish the culprit because it itself raises many ifs and buts in the smooth way of handing out punishment to the person guilty of a crime. The loopholes in the justice system only help the accused and not the innocent and the aggrieved in his quest for justice.

Justice should not only be dispensed but also appear to have been dispensed. It is absence of this scenario that is prompting people to take law into their own hands and dispense justice themselves there and then.
The writer is a Delhi based political analyst and commentator.