High Courts Weekly Roundup

Allahabad High Court

1. Elected Representative Not Enjoying The Will Of The People Can't Be Permitted To Be In Power Even For A Second: Allahabad HC [Tripti Rani v. State Of U P & Ors.]

The Division Bench comprising of Justices Shashi Kant Gupta and Piyush Agrawal observed that a democratic setup depends upon the will of the people. In case a person loses the majority he/she cannot be permitted to hold office. The Court observed,

"In view of the above inherent political philosophy and principle, the provision for bringing a no-confidence motion for removing the representatives, has been introduced in the present Act of 1961. The Will of people is supreme. It cannot be lightly interfered with. Under no circumstance can the will of the people be permitted to be frustrated."

Andhra Pradesh High Court

1. AP HC Injuncts Publication Of News Items/Social Media Posts On FIR With Respect To Alleged Amaravati Land Scam

The Bench of Justice JK Maheshwari issued an injunction restraining any media reporting as to the FIR registered by the Anti-Corruption Bureau alleging corruption and illegal land transactions in relation to the shift of the capital to Amaravti following the bifurcation of the erstwhile state of Andhra Pradesh in 2014.

The Court ordered, "It is further directed that the news in regard to registration of FIR or in the context of the said FIR shall not be made public in any electronic, print or social media."

Bombay High Court

1. Rule Of Reservation Prescribed For State Quota Seats Does Not Apply To The Seats Reverted from All India Quota: Bombay HC [United Tribal Association Alliance v. State of Goa]

The High Court of Bombay at Goa has ruled that principles of natural justice are not violated if the Institution of Lokayukta decides to implead certain persons as parties to a proceeding in exercise of suo-motu power.

Bench of Justice DS Naidu dismissed a writ petition filed by members of a panchayat who were added as parties on the allegation of helping the Sarpanch in committing certain illegal acts. Court concluded that giving notice to every proposed party inevitably results in delay and "docket deluge clogging the judicial avenues, is an unaffordable luxury."

2. Lokayukta Adding Persons As Parties To A Proceeding Exercising Suo Motu Power Without Giving Prior Notice Does Not Violate Principles Of Natural Justice

The High Court of Bombay at Goa has ruled that principles of natural justice are not violated if the Institution of Lokayukta decides to implement certain persons as parties to a proceeding in exercise of suo-motu power.

Bench of Justice DS Naidu dismissed a writ petition filed by members of a panchayat who were added as parties on the allegation of helping the Sarpanch in committing certain illegal acts. Court concluded that giving notice to every proposed party inevitably results in delay and "docket deluge clogging the judicial avenues, is an unaffordable luxury."

3. In View Of Notification For Decongestion Of Prisons During Lockdown, There Is Automatic Extension Of Parole, No Need To Apply For Extension: Bombay HC [ Faruk s/o Mustak Khan v. State of Maharashtra]

The Bombay High Court held that those prisoners or undertrials who have already been granted emergency parole as per notification dated May 8 for decongestion of prisons in view of the Coronavirus, need not apply for extension of parole once the initial 45 day period is over.

Division bench of Justice TV Nalawade and Justice MG Sewlikar of the Aurangabad bench observed, "When there is automatic extension of parole period, there is no need of giving application every time when parole period expires. In view of lock-down which was declared and the object behind the notification, no other interpretation is possible. It appears that there is also some wrong notion that when the Court has granted parole under order, the period mentioned in the order will come to an end and after that period application will be required."

4. After Husband's Death, Wife Has Every Right To Claim Maintenance From The Estate Inherited By Father-In-Law: Bombay HC [Sardool Singh Sucha Singh Matharoo v. Harpreet Kaur widow of Bhupinder Singh Matharoo]

The Court observed that after the husband's death, a woman has every right to claim maintenance from the estate inherited by her father-in-law.

Single Bench Justice Nitin W Sambre observed that as per Section 19 of the Hindu Adoption and Maintenance Act, 1956, the respondent widow of petitioner's son has every right to claim maintenance from the estate inherited by her father-in-law, that is, the petitioner. "Proviso to Sub-Section (1) of Section 19 contemplates that the respondent has to demonstrate that she is unable to maintain herself. It is in this eventuality she can claim maintenance from the estate of her husband, still fact remains that the said burden can be discharged by respondent no.1 at an appropriate stage. The object with which the provision is made in the statute book for grant of interim maintenance cannot be ignored," he said.

Calcutta High Court

COVID-19 Victims Have A Right To Decent Burial As Per Religion Under Articles 21 And 25: Calcutta HC issues Guidelines [Vineet Ruia v. The Principal Secretary Ministry of Health and Family Welfare]

Asserting the Right to a decent funeral under Article 25 of the Constitution, the Division Bench of Chief Justice Thottathil B. Radhakrishnan and Justice Arijit Banerjee ruled that the immediate family members of Covid-19 victims be permitted to perform the funeral rites of the deceased subject to them following certain precautionary guidelines to eliminate/minimize the risk of them becoming infected by the deadly virus which has caused devastation in the form of loss of countless lives across the world.

The Court was also of the firm view that the right of the family of a Covid- 19 victim to perform the last rites before the cremation/burial of the deceased person is a right akin to Fundamental Right within the meaning of Article 21 of the Constitution of India.

Delhi High Court

1. Delhi HC Rejects Plea Seeking Home-Based Exam For CLAT 2020

Single Bench of Justice Jayant Nath dismissed a plea seeking a home-based exam for CLAT 2020. The Court noted that home-based exams may not be appropriate for approximately 78,000 candidates who are to take the exam. It was further observed that the possibility of the exams being compromised or manipulated by the participants/coaching centers cannot be ruled out.

2. 'Bridge The Digital Divide, End Digital Apartheid', Delhi HC Directs Schools In Delhi To Provide Adequate Gadgets and Internet Package To EWS Students For Attending Online Classes

Division Bench of Justice Manmohan and Justice Sanjeev Narula has directed the private unaided schools and government schools to provide adequate gadgets and internet packages to students under Economically Weaker Section (EWS) and other Disadvantaged Groups (DG) in order to enable them to have an equal access to virtual classes which are being organised by schools in light of COVID19 lockdown.

The Court observed, "the private schools which are providing Synchronous Face-to-Face Real Time Online Education are the very same neighborhood schools which satisfy all the requirements of RTE Act, 2009. Hence, the teaching through online means is in accordance with RTE Act, 2009 requirements. Therefore, both the requirements of Article 21A and Section 3 of RTE Act, 2009 are clearly fulfilled even in respect of education being imparted through online means."

3. Delhi HC Issues Notice in Plea Challenging The Decision Of DU's Law Faculty To Hold Exams For Students Already Promoted To Next Semester

Single Bench of Justice Jayant Nath issued notices to the Faculty of Law, University Grants Commission, Bar Council of India, and the Delhi University, in a plea moved by students of Faculty of Law, Delhi University, challenging the decision of holding exams for students who have already been promoted to the next semester.

Gauhati High Court

1. Protection To Judges In Respect Of Actions Taken/ Words Spoken While Discharging Judicial Functions Is Absolute: Gauhati HC [Rahendra Baglari v. Sub-Divisional Judicial Magistrate (M) & Ors.]

The Bench of Chief Justice Ajai Lamba rapped a writ petitioner for adjoining a Judicial Magistrate and the HC and its Registry as Respondents to his plea against the order passed by the said Magistrate.

The Court observed that Judges enjoy "absolute protection" under the Judges (Protection) Act, 1985. Thus, impleading a Judge as a Respondent party, that too by his name, is not encouraged. The Court further observed that there was no justification for impleading the Gauhati High Court or the Registrar General as respondents in the matter.

Gujarat High Court

1. [Denial Of Info. Under RTI] 'Take Action Against Officer Under RTI Act Who Acted In A Callous Manner ', Gujarat HC Directs SIC [Sureshchandra Maneklal Dholakiya v. State Of Gujarat]

The Bench of Justice AY Kogje directed the State Information Commissioner to initiate proceedings against 'the Mamlatdar' for acting in a callous manner as a result of which the petitioner had been deprived of the right of Right to Information" under Section 20 of Right to Information Act.

The Court observed, "As against that stand, now, the stand being taken that the record is not available cannot be accepted by the Court. At the first stage when the response was given to the petitioner by the Public Information Officer as well as State Information Commissioner about the information of the third party, and therefore, not provided would be at the presumption that the respondent authorities had the record with them and after perusal of such record have found that the information sought for by the petitioner is missing, and thereafter, change their stand of no record being available. Therefore, the same cannot be accepted by this Court."

2. 'Stop Playing On The Back Foot; Hiding COVID Deaths Not In Public Interest', Gujarat HC Suggests Govt. While Requesting People To Follow COVID Norms [Suo Motu v. State Of Gujarat & Ors.]

While taking suo-moto cognizance of the COVID situation in the State of Gujarat, the Division Bench of Chief Justice Vikram Nath and Justice JB Pardiwala said that it was at pains to observe that although all efforts were being put in by the State Government to combat the situation of the COVID-19 Pandemic, yet, unfortunately, the people at large were not cooperating.

"As a High Court, whatever is expected of it to be done in the current situation is being done, but unfortunately, people are not paying heed to what the Court has been saying over a period of time. At this point in time, we are now left with only one thing to do and that is to request the people at large with folded hands to cooperate with the authorities and follow the norms and protocols prescribed and, more particularly, take care of themselves individually," the Court observed.

3. [Online Examination] 'Technical Glitches Can't Be Ruled Out', Gujarat HC Allows A 'Failed' Student To Take Next Phase Of Exams [Harsh Gandhi v. GTU]

The Single Bench of Justice Sangeeta K. Vishen allowed a failed University student to take the next phase of exams while observing that technical glitches could be faced during an online examination. The Court observed that "when working with the technology, technical glitches cannot be ruled out and must be taken into consideration."

Jammu and Kashmir High Court

1. Mere Reproduction Of The Police Dossier In Detention Order Can't Justify The Detention [Surinder Singh v. Union Territory of Jammu and Kashmir & Ors.]

The Single Bench of Justice Puneet Gupta quashed a detention order detaining one Surinder Singh under Section 8 of the Jammu & Kashmir Public Safety Act, 1978. It observed,

"No specific wording is required to be maintained while passing the order of detention while assessing the case in a subjective manner but the order has to reflect that proper application of mind has been applied keeping in view all the facts and circumstances of the case. Mere reproduction of the dossier in the detention order cannot justify the detention order in such circumstances."

2. Eviction Of Unauthorised Occupants Of Govt. Accommodation] J&K HC Grants 10 Days' Time To Govt. To File Status/Compliance Report [Mohommad Yasin Shah v. State of J&K & Ors.]

Single Bench of Justice Ali Mohammad Magrey granted the Government, 10 days' time to update the status/ compliance, as regards the directions passed by the Court qua eviction of such Former Ministers/ Former MLAs/ Retired IAS Officers/ MLCs/ Political persons, who are still unauthorizedly residing in Government Accommodation.

Jharkhand High Court

1. The Premises Can't Be Sealed By Authorities For An Unreasonably Long Period Than What Is Necessary: Jharkhand HC [SRP Oil Pvt. Ltd. v. State of Jharkhand]

Single Bench of Justice Rajesh Shankar observed that in the case of an order of sealing, the authorities cannot be allowed to keep the premises locked for an unreasonably long period than what is absolutely necessary. The order was passed in a Hotel owner's plea.

"The order of sealing also does not appear to be reasonable and proportionate, as the same has been done for an indefinite period. Even if the alleged crime scene is to be protected to ensure that the evidence of the alleged offence does not disappear, the concerned authority after locking and sealing the crime scene does not require much time to reopen the same and to prepare an inventory. Nonetheless, the authorities cannot be allowed to keep the premises locked for an unreasonably long period than what is absolutely necessary," the Court said.

Karnataka High Court

1. Bail Condition To Keep Foreigner In Detention Centre Not Violative Of Article 21 : Karnataka HC [Read Judgment] [Toichubek Uulu Bakytbek v. State of Karnataka]

Bench of Justice Hanchate Sanjeev Kumar dismissed a petition filed by a Kyrgyzstan national seeking to relax bail condition imposed by the trial court directing authorities to keep him in a detention center, till disposal of the case registered against him under the Foreigners Act.

The Court said, "Detention Centers are not to be construed as putting them into a Jail/Prison. The object behind such establishment of Detention Center and placing foreign nationals against whom cases have been registered under the FA Act, is just to restrict their movements across India and should not travel according to their whims and fancies and remain untraceable or absconded or flee away from justice. Therefore, under these facts and circumstances imposition of such a condition placing the petitioner in detention center cannot be said to be harsh or even illegal and unjustifiable and it is not violative of Article 21 of the Constitution of India."

Kerala High Court

1. Heavens Won't Fall Down If Rape Accused Is Stopped From Using Social Media To Protect Victim's Privacy: Kerala HC [Court on its own motion v. State of Bihar]

A Single Bench of Justice PV Kunhikrishnan remarked that "heavens will not fall down if a condition is imposed in a bail order restraining the accused in a rape case in using social media, especially when it is to protect the victim girl's privacy."

The Court said, "Considering the special facts and circumstances of the case, if bail is granted, why not there be a condition in the bail order directing the petitioner not to use social media like FaceBook, Whatsapp, Twitter, Instagram etc., till the case is finally concluded?"

2. Wakf Board Cannot Decide Disputes Relating To Right To Offer Worship In Mosque: Kerala HC [Najeem v. Kerala State Waqf Board]

The bench comprising Justices K. Vinod Chandran and TR Ravi noted that the Section 32 of the Act does not confer any power on the Waqf Board to decide on the question of entitlement of a person to be a member of a Jamaath and the contention that he has a right to offer worship in a Mosque will have to be considered in a properly instituted civil suit. The Tribunal constituted under the Waqf Act has powers to deal with any disputes relating to Waqf, we are of the considered opinion that such disputes should necessarily be determined in an adjudicatory process before the Waqf Tribunal,

Madhya Pradesh High Court

1. "Unfortunate That Adjudicating Authorities Delivering Judgments Based Upon Media Trials": MP HC Quashes NSA Detention Order For Participation In Muharram Procession [Tanveer Patel v. State of M.P & Ors.]

A Division Bench comprising Justices SC Sharma and Shailendra Shukla directed that the person detained to be set at liberty on the ground that the detention orders passed had not been confirmed within the statutory period of 12 days from the passing of the orders as provided in Section 3(4) of National Security Act, 1980 and therefore, the orders of detention were no longer in force.

The Court noted that the impugned order passed by the District Magistrate refers to news published in Nai Duniya, Dainik Bhaskar, Peoples Samachar and that the District Magistrate has formed his opinion on the basis of media trial.

2. Habeas Corpus Petition] Mother Who Nurtured Child For 9 Months In Womb Is Certainly Entitled To His Custody: MP HC [Madhavi Rathore v. State of M.P. & Ors]

A Single Bench of Justice SA Dharmadhikari recently observed that the welfare of a child is of paramount importance and that the mother/petitioner, who has nurtured the child for nine months in the womb is certainly entitled to the custody of the child.

The Court said, "the mother and father of the child are well educated. There was nothing adverse brought before the Court that the parents of the petitioner with whom she is living are not capable of maintaining the petitioner as well as the child."

Madras High Court

1. Agitation Before Commissioner's Office Against Mass Transfer Order 'Similar Activity' As Strike: Madras HC Upholds Punishment Of Stoppage Of Increment Of Cops [M. Marimuthu v. Director General of Police]

Single Bench of Justice RMT Teeka observed that the conduct of the police personnel in holding a demonstration before the Office of the Police Commissioner, raising slogans against the higher officials, delivering interviews to the media, in demanding for immediate relieving of an entire transfer order is an activity similar to strike.

The bench appreciated that Rule 25 of the Tamil Nadu Police Subordinate Police Officers conduct Rules lays down that No police officer shall engage himself in strike on incitements there to on in "similar activities".

2. S. 29, HMA Saves Rights Recognised By Custom': Madras HC Upholds Defence Of Customary Divorce As Valid In Departmental Proceedings For Bigamy [Sudalaimani v. The Deputy Inspector General of Police]

The Single Bench of Justice RMT Teekaa held that it is well established by a long chain of authorities that the prevalence of customary divorce in the community to which parties belong, contrary to general law of divorce must be specifically pleaded and established by the person propounding such custom.

The Court noted that it is not disputed that as per Hindu Law, divorce was not recognised as a means to put an end to marriage which was always considered to be a sacrament with only exception where it is recognised by custom. After coming into force the Hindu Marriage Act, 1955, they can seek to put an end to their marriage by either obtaining a declaration that the marriage between them was a nullity on the grounds specified in Section 11 or to dissolve the marriage between them on any of the grounds mentioned in Section 13 of the Act. While, Section 29 of the Act saves the rights recognized by custom or conferred by special enactment to obtain the dissolution of marriage, whether solemnized before or after commencement of the Act.

Patna High Court

1. Enhance Economic Support To Members Of The Transgender Community: Patna HC Asks State Government [Veera Yadav v. Government of Bihar & Ors.]

The Division Bench of Justice Sanjay Karol and Justice S. Kumar issued this order in a petition highlighting the pitiable state of affairs of the transgender in the state. Allegedly, the community is ostracized, more so in times of the current outbreak of Pandemic CoronaVirus.

Significantly, the Court remarked, "For economic sustenance, noticeably at this point of time, the Government is extending financial support to Rs.1500/- per person, perhaps, which amount should be increased considering the total members of the transgender community in Bihar not more than 40,000."

2. 'Children Are The Wealth Of This Nation', Patna HC Issues Slew of Directions For Providing Immediate Relief To Children In Bihar

Court had taken suo moto cognizance of the plight of children in the District Bhagalpur, Bihar due to non-availability of mid-day meals following shutting of schools and Anganwadi centres amid the COVID-19 pandemic.

The Division Bench of Chief Justice Sanjay Karol and Justice S. Kumar observed, "For a child, BPL has to be something more than meeting a nutritional threshold and be extended to include capacity building towards holistic development, which includes nutritional, educational and psychological needs of the child. Unless the State can empower these children to think independently and choose their path in life, it would be a significant failure of our developing society."

Punjab & Haryana High Court

1. Reconsider The Decision To Scrap Entrance Test For 5-Year Law Course: P&H HC Directs Panjab University [Read Order]

Division Bench of Justice S. Muralidhar and Justice Avneesh Jhingan directed the Panjab University, Chandigarh to reconsider its decision to scrap the UGLAW entrance examination for the 5-year law course, in light of the Covid situation. The Court emphasized that even CLAT had not been scrapped.

The Court said, "Given the fact that there is generally little scope of inclusion of law-based subjects in the syllabus for the 10+2 classes, it is not possible to make a comparative assessment of the suitability of candidates for admission to the 5- year law course solely on the basis of marks obtained in the 10+2 exam."

2. Full Bench Of P & H HC Set To Consider Whether Prisoners Detected Using/In Possession Of Cell Phone/SIM Card Inside Jail Premises Are Disentitled From Parole/Furlough [Kulwant @ Sonu v. State of Haryana & Ors.]

A bench of Justices S. Muralidhar and Avneesh Jhingan referred the question for a decision set to consider the entitlement of prisoners who are "detected of using cell phone or in possession of cell phone/SIM card inside the jail premises" for parole or furlough to a larger bench.

The bench noted that the controversy has arisen on account of different Benches of coordinate strength of this Court taking conflicting views on the interpretation of the definition of 'hard core prisoner' under Section 2 (aa) (iv) of the Act. Specifically, one view is that the fact that a prisoner is found to have either used or been in possession of a mobile phone/SIM card is enough to disqualify such prisoner for parole or furlough. Whereas, the other view is that unless such prisoner is convicted by a court for such offence which is punishable under Section 42/42A of the Prisons Act, 1894 as applicable to Haryana, the prisoner would not be disentitled to consideration for temporary release on parole or furlough.

Uttarakhand High Court

1. Petitioner In Jail Because He Is Poor; Can't Deny Him His Freedom: U'khand HC Reduces Amount Of Sureties For Bail [Ajeet Pal v. State of Uttarakhand]

The Single Bench of Justice Ravindra Maithani reducing the amount of sureties for Bail of a "poor person" observed that the petitioner could not get his freedom back because he could not arrange for sureties.

The Court said, "Petitioner is not in jail because he has been convicted, the petitioner is not in jail because he has denied bail, but he is in jail because he cannot secure sureties."