2 Jan 2021 7:51 AM GMT
The Kerala High Court pronounced several significant verdicts in 2020. Here is an annual round-up.Transfer Deed Can Be Declared Void U/s 23 Senior Citizens Act Only If It Expressly Contains Condition To Provide Basic Amenities/Physical Needs To Senior Citizen[Subhashini vs. District Collector]A bench comprising Justices K.Vinod Chandran, VG Arun and TR Ravi held that the condition as...
The Kerala High Court pronounced several significant verdicts in 2020. Here is an annual round-up.
Transfer Deed Can Be Declared Void U/s 23 Senior Citizens Act Only If It Expressly Contains Condition To Provide Basic Amenities/Physical Needs To Senior Citizen
[Subhashini vs. District Collector]
A bench comprising Justices K.Vinod Chandran, VG Arun and TR Ravi held that the condition as required under Section 23(1) of the Maintenance and Welfare of Parents and Senior Citizens Act, 2007, for provision of basic amenities and basic physical needs to a senior citizen has to be expressly stated in the document of transfer, which transfer can only be one by way of gift or which partakes the character of gift or a similar gratuitous transfer. It was further observed that there can be no implied condition to assume jurisdiction under Section 23(1) merely for the reason that the document contains a reservation of life interest. The full bench was answering a reference made in view of conflicting division bench judgments. The bench overruled the view in G S Manju v Gopinathan Pillai which held that the condition to maintain aged parents was implicit in the gift deed executed by them in favour of their child.
Sec 57 Of Transfer Of Property Act Permits Court To Declare A Property Free Of Encumbrance Even Against Will Of Encumbrancer
In a significant judgment, Justice Devan Ramachandran of the Kerala High Court explained the procedural mechanism under Section 57 of the Transfer of Property Act, 1882, to lift encumbrance from an immovable property. The Court has clarified that Section 57 of TPA was enacted to assist any party to the sale of an immovable property, which is subject to an encumbrance, to fructify the sale for its fair value.
Section 357A(4) Cr.P.C Is A Substantive Provision; Victims Entitled To Compensation Even For Crimes That Occurred Prior To Its Enactment
In a landmark judgment by the Kerala High court, the Bench of Justice Bechu Kurian Thomas ruled that "By giving the benefit to victims under Section 357A(4) Cr.P.C., for crimes that occurred prior to 31.12.2009, the statutory provision is not given retrospective effect, and instead a prospective benefit is given based on an antecedent fact."
A State Running Lottery Has No Right To Interfere With Sale Of Other-State Lotteries
The rules brought by the Kerala government to regulate sale of other-state lotteries were quashed by the Kerala High Court holding that the state government lacked such a power under the Lotteries(Regulation) Act 1998 which was passed by the Parliament. The judgment delivered by a single bench of Justice A Muhamed Mustaque observed that "No state can exercise its authority by making Rules in such a way to impact upon authority of other States to organise, conduct and promote a lottery. That power is exclusively given to the Central Government under Section 6(of Lotteries Regulation Act). The Central Government alone has the power to regulate, control and interfere with lotteries, if it is run in violation of law"
No Limitation Period For Divorced Wife To Claim Property Entrusted With Husband
POCSO Act : Constitutionality Of Reverse Burden Of Proof Under Sections 29 & 30 Upheld
[Justin @ Renjith V. Union of india]
The bench comprising the Chief Justice S. Manikumar and Justice Shaji P. Chaly upheld the constitutional validity of the Kerala Animals and Birds Sacrifices Prohibition Act, 1968, which prohibits propitiation of deity through sacrifice of animals and birds in temples and temple precincts.It was observed that there are no materials on record to substantiate which community of the religion is required under the Hindu or any other religion, to kill an animal, for propitiating, if not personal consumption, in the manner required in the religion. The Supreme Court is considering the special leave petition filed against this verdict.
Student Organisations Cannot Resort To Strikes In School/College Campuses
[Prof. Raju Kuruvilla V. State of Kerala & Ors.]
The High Court of Kerala declared that Student Organisations cannot resort to the modes of agitations like Strike, Dharna, Gherao, Processions etc. in school and college campuses for expressing their protests or dissent on any issues, political or otherwise, or for enforcement of their rights. Justice PB Suresh Kumar observed that such activities of organizations of students in school and college campuses are affecting directly and indirectly the academic and other activities of students who do not belong to the organizations and thus violating the fundamental right of such students.
[State of Kerala vs. Union of India]
The Kerala High Court bench comprising Justices Vinod Chandran and CS Dias while dismissing the writ petitions filed by the State Government and KSIDC challenging the leasing out of Thiruvananthapuram International Airport to Adani Enterprises Limited remarked that it is a "Classic example of the proverbial 'sour grapes'. The bench further observed that there is absolutely no valid ground in the challenge against privatization which is the declared policy of the Union Government. "Interference to a policy framed by the elected Government it is trite, is difficult, and the feeble challenge raised herein against the policy is devoid of merit.", the bench said. The State Government has moved the Supreme Court against this verdict.
[Bijesh Kumar M. v. State of Kerala & Ors.]
A full bench comprising of Justices A. Hariprasad, Anu Sivaraman and MR Anitha held that the Guruvayoor Devaswom Managing Committee has no authority to contribute any amount from the Devaswom Funds to Chief Minister's Distress Relief Fund or to any other Governmental agency.
All the properties, including movable and immovable properties and money, dedicated to or endowed in the name of Lord Guruvayurappan or any property acquired in any manner by Guruvayur Devaswom shall vest in the idol of Lord Guruvayurappan, consecrated in Sree Krishna Temple, Guruvayur, the bench held, overruling a judgment delivered last year which had upheld the donation of Rs. 5 crore made during the 2019 floods
The Kerala High Court dismissed a PIL challenging constitutional validity of Section 3(2) of the Medical Termination of Pregnancy Act, 1971, which allows medical termination of pregnancy under specified circumstances. The bench comprising the Chief Justice S. Manikumar and Shaji P. Chaly observed that all pregnancies are not allowed to be terminated, but only those which meet the exceptional circumstances that are referred to in Section 3(2) of the MTP Act.
Guidelines Issued For Maintaining Rape Victim Anonymity In Cases Filed Before It
The High Court issued some future guidelines for maintaining rape victim's anonymity in the matters instituted before it. Justice PB Suresh Kumar, while considering a petition arising out of a bail order passed by POCSO Court, observed that in several matters instituted before the High Court the identity of the victim is disclosed directly or indirectly. In some matters, identity is disclosed in the pleadings and in some others, identity is disclosed in the documents produced along with the pleadings, the judge noted.
Schools Which Require Govt Recognition Cannot Impart Religious Studies Of One Religion Exclusively In Preference To Others
[Renjith J V V. State of Kerala & Ors.]
The High Court of Kerala held that the provisions relating to reservation in employment for physically challenged persons would apply to aided Schools and Colleges including minority institutions. Disposing the writ petitions filed by two persons, Justice PV Asha issued direction to the respective managements to conduct the selection and appointment in tune with the aforesaid Government Order in implementation of the 1995 Act and Right to Persons with Disability Act, 2016.
[Abhishek.K.A @ Bhanu Vs. State Of Kerala]
The Kerala High Court issued general directions to be followed by the Investigating authorities and Trial Courts while dealing with POCSO crimes and cases. Justice PB Suresh Kumar observed that lack of professionalism is writ large in the investigations in POCSO cases. The Court issued directives in exercise of the power under Articles 226 and 227 of the Constitution of India, with a view to protect the children involved in the cases from the risk of secondary victimisation and to make the justice delivery under the statute effective and meaningful.
[M.P.Chothy vs State Of Kerala]
The bench comprising the Chief Justice S. Manikumar and Justice Shaji P. Chaly upholding the constitutional validity of Kerala State Commission for the Scheduled Castes and the Scheduled Tribes Act, 2007 observed that that the proceedings before the SC/ST Commission cannot be equated to court proceedings, nor do they partake the character of a trial or inquiry, as envisaged in the Code of Criminal Procedure, 1973, and there is no repugnancy between the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989, and the Kerala State Commission for the Scheduled Castes and the Scheduled Tribes Act, 2007, in the matter of providing TA/DA, to the victims/witnesses, required to be present for investigation, as completed in respect of an offence and trial.
[Dr. Johny Cyriac V. The Ministry of HRD & Ors.]
The bench of Chief Justice S. Manikumar and Justice Shaji P. Chaly directed the Central and State Governments, the educational authorities including Central Board of Secondary Education, to ensure that the orders they have passed to reduce the weight of school bags are implemented in all the schools, in its letter and spirit. It also ordered the authorities carry out periodic inspections in the school, with or without notice so as to ensure that the orders are implemented by the respective authorities.
[Qualified Pvt. Medical Practitioners Assn V. Union of India & Ors.]
'To Have A Name And To Express It In The Manner One Wishes Is A Part Of Right To Freedom Of Speech And Expression'
[Kashish Gupta (M) v. CBSE & Ors]
Justice Bechu Kurian Thomas, in a writ petition preferred by a young girl, seeking a direction to the CBSE to allow her application for change in name, held that expression of one's name in the manner one wishes is a Fundamental Right enshrined under Article 19(1)(a) of the Indian Constitution.
Bail Can't Be Refused On Ground That It Will Encourage Vigilantism Or Send Wrong Message To Society
While granting bail to three women who were accused of assaulting a YouTuber over a vulgar video, the Kerala High Court said it does not approve of vigilantism shown by them.
The fact that granting bail to the applicants would give a wrong message to the public at large and that it would amount to an encouragement of vigilantism is no reason to refuse granting of bail, Justice Ashok Menon observed in the bail order. The judge observed that granting of bail is based on totally different parameters.
[Jana Samparka Samithy Vs. State Of Kerala]
The bench comprising the Chief Justice S. Manikumar and Justice Shaji P. Chaly observed that the State Government has a duty to ensure the well being, and life and liberty of migrant workers also. It was observed that the state is duty bound to ensure that the employers are providing appropriate shelter to the migrant workers, a clean environment and a healthy living condition with sufficient ventilation, light etc. along with other basic amenities. It added that the State Government should also see that employers are satisfying the requirements in accordance with the prevailing laws with respect to the wages, contribution to welfare funds etc. of the migrant labourers. Adequate measures shall be taken for curbing ill-treatment of the labourers in any manner, by the employers, the bench said.
[Glanis vs Lazar Manjila]
The Kerala High Court held that, while computing compensation for dependency of a widow on the death of her husband under Section 166 of the Motor Vehicles Act, her remarriage shall not be a decisive factor. Justice N. Nagaresh observed that the loss of dependency consequent to the death of the husband does not cease merely because she has remarried or became self-reliant.
[Tata Consultancy Services Ltd. v. State of Kerala]
A division bench comprising Justices K Vinod Chandran and V G Arun of the High Court of Kerala struck down Rule 21A(2) of the Kerala Minimum Wages Rules which mandated the payment of wages electronically through bank accounts. However, the Court upheld the other amendments brought through the Kerala Minimum Wages (Amendment) Rules 2015 regarding the maintenance of electronic records relating to the wage information of employees and uploading of the same through the 'Wage Payment System" developed by the department. The Supreme Court has issued notice on the SLPs filed against this verdict.
"Surrender Can Never Be Construed as Consensual Acts of Sexual Intercourse"
[ Thankappan P.K vs State Of Kerala ]
In this judgment, the High Court observed that only those sexual intercourse which are welcomed could be construed as not violative of the rights of the victim, and accepted as consensual. Mere act of helpless resignation in the face of inevitable compulsion, quiescence, nonresistance, or passive giving in, when volitional faculty is either clouded by fear or vitiated by duress, cannot be deemed to be 'consent', Justice PB Suresh Kumar observed.
"...it is appropriate to direct the Election Commission to insist on obtaining a declaration from the contestants of a coalition to produce the declaration that the contestant is part of the coalition", ordered a single bench of Justice A Muhamed Mustaque while setting aside the order of disqualification passed by the State Election Commission against a candidate who had won the local body polls in 2015.