30 Dec 2021 6:23 AM GMT
In the year 2021, there were many instances where Madras High Court placed constitutional freedoms and citizens' rights on a higher threshold. LiveLaw lists out those instances for our readers below. 1. 'Right To Be Funny Can Be Mined In Article 19(1)(a)' : Madras High Court Quashes FIR Over Humorous Facebook Post [Mathivanan v. Inspector of Police & Ors.] While quashing...
In the year 2021, there were many instances where Madras High Court placed constitutional freedoms and citizens' rights on a higher threshold. LiveLaw lists out those instances for our readers below.
1. 'Right To Be Funny Can Be Mined In Article 19(1)(a)' : Madras High Court Quashes FIR Over Humorous Facebook Post [Mathivanan v. Inspector of Police & Ors.]
While quashing an FIR registered against an office-bearer of CPI (ML) who uploaded vacation pictures with the caption 'Trip to Sirumalai for shooting practice', the Madurai Bench of Madras High Court went on to make some interesting observations about the 'duty to laugh' and the 'right to be funny'.
Justice G.R Swaminathan quashed the FIR against the 62-year-old accused while underscoring that the case registered by Vadipatty Police, booking the latter for 'making preparations to wage war against the State', is 'absurd and an abuse of legal process'.
The Court went on to observe that the correlative right to be funny can be "mined in Article 19 (1) (a) of the Constitution of India".
Justice GR Swaminathan wrote in the FIR quashing order as below:
"Jug Suraiya, Bachi Karkaria, E.P.Unny and G.Sampath...if any satirist or cartoonist had authored this judgement, they would have proposed a momentous amendment to the Constitution of India to incorporate sub-clause (l) in Article 51-A…. To this, the hypothetical author would have added one more fundamental duty - duty to laugh."
2. Right To Default Bail Not Extinguished With 'Simultaneous' Filing Of Chargesheet: Madras High Court [ K. Muthuirul v. The Inspector Of Police]
In a pertinent ruling, the Madurai Bench of Madras High Court has delved deep into the statutory provisions and precedents that determine the four corners of default bail under Section 167(2) of CrPC and Section 36(A)(4) of NDPS Act.
Justice K. Murali Shankar has held that subsequent or even simultaneous filing of the charge sheet does not disentitle an accused from claiming default bail under CrPC.
The Bench observed that there is a misconception that in cases where the bail petition under Section 167(2) Cr.P.C and the charge sheet are being filed on the same day, then the time at which, bail petition or the charge sheet is filed, is the deciding factor and that if the charge sheet is filed earlier to the bail petition, then the accused is not entitled to get the statutory bail or in case, if the bail petition is filed before laying of charge sheet, then the bail application has to be allowed.
3. Delay In Producing Accused Arrested Through PT Warrant Before Court Is Violative Of His Fundamental Right Under Article 21: Madras High Court [M. Kishore v. Inspector Of Police]
The court observed that the purpose of a Prisoner on Transit Warrant (P.T. warrant) is only to direct the production of a person confined or detained in a prison through a lawful order and such a warrant cannot be interpreted to mean that the same will authorize the Police to curtail the liberty of a person by keeping the accused person in custody till he is produced before the concerned Court.
Justice N. Anand Venkatesh observed that the delay in producing the accused person before the Court after a formal arrest through a Prisoner on Transit Warrant would violate the liberty guaranteed to him under Article 21 of the Constitution of India.
"Where the investigating officer decides to arrest the accused person through a formal arrest, the accused person does not come into the physical custody of the police and for the purpose of calculating the period of 60 days or 90 days as contemplated under the proviso to Section 167(2) of Cr.P.C., it can be computed only from the date of detention as per the orders of the Magistrate and not from the date of formal arrest by the Police. A P.T. Warrant cannot be used for the purpose of keeping a person in detention without producing him before the concerned Court and such non-production will certainly curtail the liberty of a person", observed the court.
4. Coercive Application Of IT Rules Against Intermediaries Violates Article 19(1)(a); Oversight Mechanism Robs Media Of Independence : Madras High Court's Prima Facie View [Digital News Publishers Association v. Union of India and other connected matters]
The Court observed that the Bombay High Court's order dated August 14, 2021 staying the operation of sub-rules (1) and (3) of Rule 9 of the recently notified Information Technology (Guidelines for intermediaries and Digital Media Ethics Code) Rules, 2021 (IT Rules 2021) ought to have a pan-India effect.
Sub-rules (1) and (3) of Rule 9 mandate adherence to the Code of Ethics which is annexed to the IT Rules, 2021 and provide for a three-tier structure for addressing the grievances made in relation to publishers.
Accordingly, the Bench opined,
"There is substantial basis to the petitioners' assertion that Article 19 (1) (a) of the Constitution may be infringed in how the Rules may be coercively applied to intermediaries"
Also Read: Bombay High Court's Stay On Enforcement Of IT Rules 'Code Of Ethics' Against Digital Media Ought To Have Pan-India Effect: Madras High Court [Read Order]
5. Corporations/Municipalities Heads To Be Held Personally Liable For Any Death To Anyone Engaged In Manual Scavenging Work: Madras High Court [Safai Karmachari Andolan v. Union Of India]
Noting that the Municipalities and Corporations may have stopped directly engaging manual scavenging work, the Bench of Former Chief Justice Sanjib Banerjee and Justice Senthilkumar Ramamoorthy observed that the contractors are engaged for the purpose and Corporation and Municipal officials look the other way, while manual scavengers are still sent down the pits to carry filth on their heads as they come up.
Further, the Court issued a direction which states that:
"It must be made clear by the appropriate department of the State to all heads of Municipal Corporations and Municipalities in the State that any manual scavenging death within the jurisdiction of the relevant Municipality or Corporation will result in the Commissioner or Chairperson or the like controlling authority of the relevant body to face criminal charges and be subjected to immediate arrest."
6. All Correctional Homes Should Permit Interaction Between Inmates & Advocates Representing Them: Madras High Court [Suo moto v. Union of India & Ors.]
While hearing a matter pertaining to the inmates at the various correctional homes in Tamil Nadu and Puducherry, a Bench of Former Chief Justice Sanjib Banerjee and Justice Senthilkumar Ramamoorthy directed the authorities at all correctional homes to permit interaction between advocates representing the inmates and the relevant inmates upon setting down certain parameters.
It also directed the relevant Government Departments to publish the decisions taken by the High-Power Committees at the recent meetings setting down parameters for grant of parole or leave of inmates at correctional homes.
7. Every Citizen Has The Right To Comment On Govt. Policies': Madras HC Directs TN Bar Council To Enroll Law Graduate Who Participated In Anti-Sterlite Agitation [K Siva v. The Bar Council of Tamil Nadu and Pondicherry and Ors]
Coming to the aid of a law graduate who had participated in the protests for the closure of Vedanta's Sterlite Copper plant in Thoothukudi because of which he had been denied enrolment as an advocate, the Madurai Bench recently directed the Bar Council of Tamil Nadu and Puducherry to enroll him as an advocate on its roll.
A Bench comprising Justices M Duraiswamy and Murali Shankar pertinently observed, "The right to freedom of speech and expression and the right to assemble peaceably and without arms are fundamental rights guaranteed under Article 19(1) (a) and (b) of the Constitution of India ... every citizen is having right to comment on the policies of Governments and to have their own views with respect to such policies."
8. Strict Action Must Be Taken Against Political Parties For Damaging Public Property During Demonstrations: Madras High Court Directs State Govt [Pattali Makkal Katchi v. The Additional Chief Secretary and ors]
The Court has recently observed that political parties and communal, linguistic or ethnic groups who indulge in violence and damage public property during agitations must not be allowed to go scot-free.
The Court made the observations while refusing to quash proceedings initiated against the Pattali Makkal Katchi (PMK) party in relation to 2013 incident under the Tamil Nadu Property (Prevention of Damage and Loss) Act, 1992 (1992 Act). The alleged incident is said to have occurred when a clash broke out at a bus stop that involved PMK members leading to the destruction of buses and public property.
9. Madras High Court Bats For Common Cremation/ Burial Grounds Without Caste Segregation, Suggests Penal Action Against Any Violation [B. Kalaiselvi & Anr.v. The District Collector & Others]
In a plea filed for assigning a permanent burial ground for the members of Arunthathiyar Community, the Court has recently held that segregation of burial ground for a particular caste/ community cannot be endorsed by the Court.
Taking note of the discrimination meted out to people on the basis of caste, even in death, Justice R. Mahadevan suggested a slew of measures that may be adopted by the local bodies, state government and other authorities to curb the menace of caste segregation.
10. "Open To Petitioner To Live In The Stone Age, Courts Can't Impose Sanctions On How Media/Social Media Operates": Madras HC [S. Umamaheswaran v. Union of India & Ors.]
A Bench of Former Chief Justice Sanjib Banerjee and Justice R. Hemalatha dismissed a plea seeking directions to the respondents (including the Union of India) to take necessary steps to control, monitor, guide, and to form a panel of censor members of the social platforms.
Observing that it is open to the petitioner to live in the stone age or to protect his family or his children from the advances of technology, the Bench remarked, "Though complaints may be entertained, the Courts are not there to impose sanctions or guidelines on how the media or even social media operates and it is for the other agencies to do so, based on the policy decision taken by the legislature of the day or the executive arm."
11. Authorities Need To Be Told That Right To Property Has Close Nexus With Right To Life Under Article 21: Madras High Court [Jayalakshmi & Ors. v. State of Tamil Nadu]
A Bench of Justice N. Seshasayee observed that State Authorities need to be told that the Right to Property has close nexus with Right of Life under Article 21 of the Constitution of India. the remarks came in a plea wherein it was alleged that the State failed to take any action regarding the lands of the Petitioners despite Court's direction that the State should "go for fresh acquisition following the due process of law".
Coming down heavily upon the authorities, the Court said, "By their inaction, they have denied the right of these citizens at least for 10 years, and to that extent, they have transgressed the quality of life of the citizens of this Country within the meaning of Article 21 of the Constitution of India"
12. Madras High Court Orders 5 Lac Compensation To Man Who Lost Wife Due To Non-Availability Of Ambulance At Health Centre [T. Rajagopal v. State of Tamil Nadu & Ors.]
Revisiting the concept of 'golden hour' in medical parlance, a Single Bench of Justice N. Anand Venkatesh directed the State Government to pay Rs. 5,00,000/- compensation to the husband of a woman who died due to the non-availability of ambulance at a Primary Health Centre (PHC) and the resultant delay in shifting her to the Medical College for proper treatment.
It observed, "There was a delay in shifting the deceased from the Primary Health Centre to the Medical College, Asaripallam. When it comes to saving a life, every second count and delay by even a few minutes can cause the death of a person. Therefore, when it comes to medical emergencies, delay can never be condoned like how leniently we condone in Courts" the Court observed.
13. IT Rules 2021: Madras High Court Restrains Coercive Action Against Digital Media Platforms Under IBDF [Indian Broadcasting & Digital Foundation v. Ministry of Electronics and Information Technology & Ors]
The Court has restrained the Central Government from taking any coercive action under the IT Rules 2021, against digital media platforms that are members of the Indian Broadcasting and Digital Foundation, including Sun TV Network.
The development comes in a writ petition preferred by the Foundation challenging the Code of Ethics in relation to digital media platforms under Part III of the 2021 Rules.
14. No Person Or Political Bigshot Has Right To Encroach Public Land, Govt. Needs To Ensure A Sense Of Discipline: Madras High Court [V. Vaira Sekar v. Secretary, Home, Prohibition & Excise Department & Ors.]
Taking note of the menace of unauthorized constructions rampantly mushrooming on revenue land, a Bench of Former Chief Justice Sanjib Banerjee and Justice MM Sundresh directed the Government to ensure a sense of discipline and uniformly demolish any kind of unauthorized construction on revenue land, be it the construction of any religious idol or made for political considerations.
"The message has to be sent loud and clear that no illegal set of persons or political bigshot has the right to put up or encroach any public land by putting up any kind of construction without following appropriate procedure and after obtaining due permission from the local authorities in accordance with law," it added.
15. Hyper Nationalism Goes Against Prosperity Of Our Nation From All Its Past Glory: Madras High Court [State v. D. Senthilkumar]
A Single Bench of Justice N. Anand Venkatesh held that cutting of a cake that is iced like the National Flag will not amount to an 'insult' to attract the offence under Section 2 of the Prevention of Insults to National Honour Act, 1971. It observed that patriotism is not determined by a physical act and that the intention behind the act is the true test in such cases.
It observed, "There is no doubt that nationalism in a democracy like India is very vital. But, hyper and surfeit adherence to it goes against the prosperity of our nation from all its past glory. A patriot is not one who only raises the Flag, symbolises his national pride and wear it on his sleeve, but also, a person who bats for good governance. The symbolisation of national pride is not synonymous with patriotism, just like how cutting a cake is not unpatriotic."
The Bench thus held,
"For any act to be termed as an offence under Section 2, Actus Reus and Mens Rea should be established. The Actus Reus being any of the actions in Section 2 and Explanation 4 and the Mens Rea being the intention to show disrespect or contempt."
Reliance was placed on a decision of the Kerala High Court in PV Joseph, v. State of Kerala, 2016 SCC OnLine Ker 11466, where it was held that a prosecution would be unnecessary in a case where there was no intention on the mind of the accused person to dishonour the National Flag.
16. Recommendations Of State Human Right Commission Are Legally Enforceable, Binding On Govt/Authorities: Madras High Court (FB) [Abdul Sathar v. Principal Secretary to Govt. & Ors.]
A Full Bench comprising of Justices S. Vaidyanathan, Parthiban and M Sundar held that the recommendation of State Human Rights Commission under Section 18 of the Protection of Human Rights Act, 1993 is binding on the Government or Authority. It further held that it's adjudicatory orders are legally and immediately enforceable.
The State has no discretion to avoid implementation of the recommendation and in case the State is aggrieved, it can only resort to legal remedy seeking judicial review of the recommendation of the Commission, the court held. The Commission can order recovery of the compensation from the State and payable to the victims of the violation of human rights under Sub Clause (a)(i) of Section 18 of the Act and the State in turn could recover the compensation paid, from the Officers of the State who have been found to be responsible for causing human rights violation.
In regard to the imposition of penalty as a consequence of a delinquent official being found guilty of the violation, a limited departmental enquiry may be conducted only to ascertain the extent of culpability of the Official concerned in causing violation in order to formulate an opinion of the punishing Authority as to the proportionality of the punishment to be imposed on the official concerned. The High Court also held that since the recommendation of the H.R.Commission is held to be binding, an officer/employee concerned can resort to appropriate legal remedy at any stage qua complaint or inquiry by the Commission but only on substantial legal grounds.
17. Writ Jurisdiction U/A 226 May Be Exercised At Pre-Detention Stage In Case Of Potential Threat To A Person's Fundamental Rights: Madras High Court [D. Aswin Rao v. State & Ors.]
A Single Bench of Justice N. Anand Venkatesh held that Article 226 of the Constitution empowers the High Court to exercise its writ jurisdiction even at a pre-detention stage, if it is of the view that there is a potential threat of violation of a person's fundamental right under Article 21 of the Constitution.
The finding comes with a rider that before exercising such jurisdiction, the Court concerned must satisfy itself that there is a potential threat of violation of Article 21 of the Constitution. For this, the Bench said, here must be some materials before the Court to determine the existence of a potential threat. "It cannot be based on mere apprehensions and this Court can only act on some overt acts," it held.
The Court also made it clear in this case that the Court cannot take action for internal thoughts. It held that protection can be granted only after overt acts.
It opined that if overt acts towards violation have already been done and the same has come to the knowledge of the person threatened with that violation and he approaches the court under Article 226 giving sufficient particulars of proximate actions as would imminently lead to violation of right, the court may call upon those alleged to have taken those steps to appear and show cause why they should not be restrained from violating that right.
18. Madras High Court Quashes Order Impounding Leena Manimekalai's Passport Over Pendency Of Criminal Defamation Case; Orders Release Within One Week [Leena Manimekalai v. Regional Passport Officer]
In a writ petition challenging the impounding of Leena Manimekalai's passport, the High Court has allowed the petitioner's plea while setting aside the impounding order of Regional Passport Officer, Chennai on the grounds of pendency of criminal defamation proceedings against her.
Justice M. Dhandapani has directed the Regional Passport Office to release the impounded passport within a period of one week from the receipt of the court's order.
Also Read: 'Non-Application Of Mind, Impounding Over A Private Complaint Without Any Rhyme Or Reason': Madras High Court On Impounding Of Leena Manimekalai's Passport
19. TN Govt Considering Amendments In Police Conduct Rules To Prevent Harassment Of LGBTQIA+ Community: State Tells Madras High Court [S. Sushma & Anr. v Commissioner of Police & Ors.]
Various government authorities yesterday expressed their willingness before the Court to make amends in their approach towards the LGBTQIA+ community, by conducting sensitization programmes and other steps expedient for the purpose.
The Public Prosecutor informed Justice N. Venkatesh Anand that the State is seriously considering amendments to the Police Conduct Rules to ensure that the Community does not suffer harassment at the hands of any police officer.
20. Writ Petition At Pre-Detention Stage: Madras HC Doubts Correctness Of SC Decision In 'Subash Popatlal Dave' Case [Sabeer Ahamed Sayeed v. State of Tamil Nadu & Anr.]
A Single Judge Bench of Justice GR Swaminathan expressed its reservation over the correctness of a three-Judge Bench decision of the Supreme Court in Subhash Popatlal Dave v. Union of India, (2012) 7 SCC 533, which overruled another three-Judge Bench judgment in Sayed Taher Bawamiya v. Joint Secretary, (2000) 8 SCC 630). Both the decisions pertain to the scope of power of a High Court to exercise its writ jurisdiction under Article 21 of the Constitution at a pre-detention stage, as permitted in the case of Alka Subhash Gadia.
The Judge, inter alia, was of the opinion that a Bench of same size, i.e. three Judges in Subhash Popatlal Dave (supra) could not have overruled the judgment in Sayed Taher Bawamiya (supra).
21. Right To Practice Religion Is Subservient To Right To Life: Madras High Court Disposes Of Plea Seeking Reopening Of Temples
A Division Bench of Former Chief Justice Sanjib Banerjee and Justice Senthilkumar Ramamoorthy observed that when the right to life is under a threat, the right to practice religion will have to take a backseat. The Court observed that the right of citizens to practice religion is subservient to their right to life and thus, the Court dismissed a plea seeking reopening of temples across Tamil Nadu.
The Court observed that "citizens to practice religion is subservient to their right to life and when the right to life is under a threat". With this, the Court declined to entertain a plea filed in the nature of Public Interest Litigation (PIL)
22. Seeking To Declare Lord Muruga As 'Tamil God' Would Damage Federal And Secular Fabric Of This Great Nation: Madras High Court [Thirumurugan v. State of Tamilnadu]
A division bench comprising Justices MM Sundresh and S Ananthi dismissed a petition seeking to the direct the State Government to issue an order declaring Lord Muruga a Tamil God, saying it "would cause damage to the very fibre of the federal and secular nature of this great Nation".
The preamble of the Constitution emphasizes on the secular nature of the Country, the Court said in the order passed on February 4. "The petitioner may have a justifiable reason to treat Lord Muruga as the Lord of the Tamil Language. It is for him to do so. However, as a State such a request is not feasible for consideration", the Court observed.
23 Maridhas's Tamil Nadu-Kashmir Remark "A Naïve Tweet In 'Pamukian' Sense, Not Intended To Subvert TN Govt": Madras High Court Quashes FIR [M. Maridoss v. State Represented By The Inspector Of Police & Anr.]
The Madurai Bench has quashed an FIR registered against YouTuber M. Maridhas for asking on Twitter whether Tamil Nadu is 'turning into another Kashmir under the DMK Rule'. The Tweet was made by the accused alleging certain comments were made celebrating the death of former Chief of Defence Staff (CDS) Bipin Rawat's demise in Coonoor chopper crash.
24. 'No Student Can Be Expelled For Non-Payment': Madras High Court Permits Pvt Schools To Collect 85% Fees In Instalments [Federation of Association of Private Schools in Tamil Nadu v. The Chief Secretary to Government and Ors]
The Court permitted private unaided educational institutions to collect 85% of the annual school fee payable for the current academic year, i.e. 2021-22 in six instalments from parents who have not suffered any form of financial loss during the pandemic period. However, the Court made it clear that no student shall be restrained from attending online classes or taking exams or expelled from the institution on account of non-payment of fees.
25. Call Of Policy-Makers In The Legislature To Consider Whether State Should Turn Dry, Courts Have No Role To Play: Madras High Court [V. Kaliyamoorthy v. District Collector Thanjavur District]
Underlining that Courts cannot barge and interfere on the personal predilection of any individual that every form of drinking may be evil, a Bench of Former Chief Justice Sanjib Banerjee and Justice R. Hemalatha held that it is for the policy-makers in the legislature to consider whether the State should turn dry.
It thereby dismissed a plea seeking directions to the respondents to close and shift a TASMAC Shop and the bar attached therein, functioning at a particular of Thanjavur District.
26. Madras High Court Issues Directions To Curb Police Harassment, Insensitive Media Reporting Against LGBTQ + Community, Calls For Change In Queerphobic MBBS Curriculum [S. Sushma and Anr v. Director General Of Police]
The Court issued a host of directions against police harassment, insensitive media reportage in matters pertaining to the LGBTQIA+ community. The Court was adjudicating upon a writ petition moved by a lesbian couple seeking protection from police harassment.
In its earlier order dated June 7, 2021, a single-judge bench of Justice N. Anand Venkatesh had issued a slew of guidelines to ensure that same-sex couples are not harassed by police authorities pursuant to missing complaints lodged by their parents. Justice Anand Venkatesh observed with anguish that despite the Court's earlier orders, the police authorities were continuing to harass same-sex couples.
Also Read: 'LGBTQIA+ Community Cannot Be Left In A Vulnerable Atmosphere' : Madras HC Issues Guidelines Against Police Harassment [S. Sushama & Anr. v. Commissioner of Police & Ors.]
27. 'Tablighi Jamaat Can't Be Equated With Islam': Madras High Court Quashes FIR Against YouTuber Maridhas [Maridhas v. State & Anr.]
The Madras High Court (Madurai Bench) quashed yet another FIR registered against YouTuber Maridhas over his YouTube Video criticizing the Tablighi Jamaat conference of March 2020 during the COVID first wave.
A Single Judge Bench of Justice G.R. Swaminathan observed that none of the ingredients of alleged offences in the FIR has been made out by the Prosecution.
About the video uploaded by Maridhas on his YouTube Channel, the court noted that he was merely expressing his views as a public commentator about an event that was undoubtedly characterized as a 'super spreader'. While making the relevant remarks, the court also added that the petitioner accused was entitled to protection under Article 19(1)(a). He had relied solely on the news sources available in the public domain about the congregation.
"Criticism of an organization cannot be taken as a criticism of a community. Tablighi Jamaat cannot be equated with Islam. It is a religious organization professing particular goals. No one can deny that Tablighi Jamaat came under severe and harsh criticism for its reckless and irresponsible conduct during March 2020", Justice G.R. Swaminathan noted in the FIR Quashing order.
28. Madras High Court Quashes Criminal Defamation Case Against DMK Leader Kanimozhi Karunanidhi [Kanimozhi Karunanidhi v. The Public Prosecutor & Anr.]
The Court quashed a criminal defamation case filed against DMK leader Kanimozhi Karunanidhi, for allegedly levelling unfounded corruption allegations against former Tamil Nadu CM, Edappadi Palaniswami of AIADMK.
Justice M Nirmal Kumar quashed the case that pertains to a 2018 DMK led protest in Villupuram on the issue of garbage disposal. Kanimozhi was accused of tarnishing the reputation of then CM, E. Palaniswamy, by alleging corruption in her speech.
29. Treating Ordinary Country Bomb Cases As Terrorist Offences Will Defeat Purpose Of NIA Act [Jaffar Sathiq @ Babu v. State]
The Madras High Court has expressed concern about the difficulties which will be caused by sending all cases involving scheduled offences under the National Investigation Agency Act to the 'Special Courts' notified under the NIA Act.
Since the Explosive Substances Act is also a scheduled offence under the NIA Act, every case involving the offences under the Explosive Substances Act will have to go to special courts under the NIA Act. In this context, the High Court noted that the Explosive Substances Act is routinely invoked in gangster crimes in Tamil Nadu as "ordinary rowdy gangs have now graduated from using knives to country bombs which they find easier to carry and hurl than traditional weapons".
A 3-judge bench comprising Justices P N Prakash, V Sivagnam, RN Manjula answered the reference made to it as follows: "An order passed by a Court of Session dismissing a bail application in a case involving offence(s) under the Unlawful Activities (Prevention) Act,1967 must be challenged only by way of an appeal under Section 21 of the National Investigation Agency Act, 2008. Consequently, such an appeal would lie only before a Division Bench vide Section 21(2) of the National Investigation Agency Act, 2008."
Applications under Section 439 or 397 of the Criminal Procedure Code are not maintainable against the rejection of bail by the Sessions Court in a UAPA case, the Court clarified.
30. Religious Conversion Won't Change Person's Caste; Inter-Caste Marriage Certificate Can't Be Issued Merely On Account On Conversion : Madras High Court [S. Paul Raj v. The Tahsildar, Mettur Thaluk &Anr.]
The Court has recently held that a person is not entitled to claim an 'inter-caste marriage' certificate on the pretext of his community certificate when he originally belonged to a certain caste but received a different community certificate on account of conversion to another religion.
Justice S.M. Subramaniam observed that conversion does not alter the caste of a person and the said aspect cannot be suppressed to grant an inter-caste marriage certificate on the basis of his current community certificate.
In the case at hand, the petitioner originally belonged to Adi- Dravidar Community and married a person from Hindu Arunthathiyar community, both of which are originally Scheduled Castes. The petitioner was later given a 'Backward Class' Certificate on account of his subsequent conversion to Christianity.
"When, both the petitioner and his wife belong to Scheduled Caste community by birth, merely because the petitioner by virtue of conversion changed the religion would not entail him to get the inter-caste marriage certificate", the court recorded in the order.
31. Sterlite Protests- 'State Must Be Seen To Be With The Families, Not An Adversary': Madras HC Orders State To Provide Compensation, Assistance To Victims and Their Kin [Henri Tiphagne v. NHRC and Ors]
The Court issued a host of directions to the State government for the rehabilitation of the victims and their families of the 2018 incident of police firing that had followed the Sterlite Protests (May 28, 2021) in Thoothukudi, Tamil Nadu.
The Court was adjudicating upon a plea moved by Mr. Henri Tiphagne, Executive Director of People's Watch seeking disclosure of NHRC's 'undisclosed' 2018 investigation report on the incident of police firing on unarmed civilians protesting against Vedanta Sterlite's copper smelting plant at Thoothukudi.
32. Sitting During Tamil State Song 'Tamil Thai Vaazhthu' Not Disrespect: Madras High Court On Kanchi Seer's Conduct [Kan. Ilango v. State Represented by Inspector of Police & Another]
A Single Judge Bench of Justice G.R. Swaminathan observed that the 'Tamil Thaai Vaazthu' is a prayer song and not an anthem. The Madurai Bench also clarified that there is no statutory requirement or executive orders stipulating that attendees must invariably stand up when 'Tamil Thaai Vaazthu' is sung. However, irrespective of the lack of binding orders, the court added that the prayer song must be shown utmost reverence and respect.
33. 'Intersectional Discrimination': Madras HC Lays Down Guidelines For Fair Treatment Of Disabled Women Athletes, Condemns 'Romantic Paternalism' [ M. Sameeha Barvin v. The Joint Secretary, Ministry of Youth & Sports & Ors.]
Madras High Court has issued comprehensive directions to the respondent authorities to streamline the policy that pertains to women athletes with disabilities and their fair treatment, invoking the doctrines of 'reasonable accomodation' and 'indirect discrimination', along with the principles of 'romantic paternalism' and 'intersectionality'
Justice R. Mahadevan observed that the case at hand was a clear instance of 'discrimination based on the gender as well as the disability' and that the state and central governments have failed in their responsibility to ensure support and safety to disabled women athletes.
34. "Showing Protest Is Hallmark Of Democracy": Madras HC Quashes Sedition Case Against Two For Distributing Hand Bills In 2018 Anti-Sterlite Protest [M.Vinayagar v. State & Anr.]
The Court observed that showing protest, being a fundamental right, is a hallmark of democracy. It quashed criminal case against two persons booked under sedition for distributing handbills against the Centre and State Government in relation to the 2018 Anti-Sterlite Protest.
Justice M. Nirmal Kumar was dealing with a petition seeking quashing of the criminal case against one M. Vinayagar who was facing trial under sec. 294(b), 124A, 353 and 505(1)(b) of IPC. It was argued that it is a false case and that the sanction required under Section 196 of Cr.P.C. for the offence of Sedition was not obtained by the lower court.
35. 'Reckless Statements Demeaning Another Religious Faith Will Only Sow Seeds Of Hatred': Madras High Court Warns Evangelist While Quashing FIR [Mohan C Lazarus v. State]
A single bench of Justice Anand Venkatesh quashed the FIRs against Christian evangelist Mohan C Lazarus, the founder of 'Jesus Redeems Ministry', for hurting religious sentiments, following his unconditional apology. However, the Court strongly rebuking his conduct and emphasizing the need to maintain restraint while exercising the right to propagate religion.
"If the Petitioner is going to make reckless statements which has the propensity of demeaning another religious faith, it will only sow seeds of hatred among people across religious faiths. Every word uttered by any person holding an influential status in their respective religions has the potential to make or mar the inner development of a person. Therefore, such persons are required to exercise a great amount of responsibility while uttering each word", the judgment said.
36. Hills & Hillocks Cannot Be Given For Mining Unless There Is Supervening Public Interest: Madras High Court [K. Santhanam v. District Collector, Virudhunagar & Ors.]
A Single Bench of Justice GR Swaminathan criticized the practice of mechanically issuing licenses for mining of hillocks, without assessing the impact it may have on the public and on the environment in the longer run. It held that it is not open to the Government to arbitrarily give away hills and hillocks for exploitation and it is imperative that the executive demonstrates that there is a need to subordinate the right to the environment to the right to development.
"Merely because the process of issuance of mining lease was conducted in consonance with the statutory procedure, that would not confer any immunity against judicial scrutiny. Unless there are supervening public interest considerations, hills and hillocks cannot be given away for mining," the Court observed. The Judge admitted that there is no statutory prohibition against mining/quarrying of mounds rich in minerals. However, he asserted that both the Government as well as the citizens have a constitutional obligation to protect the environment and ecology under Article 48-A and Article 51-A(g).
37. Doubtful If 'Right to Refuse' Covid-19 Vaccine Can Be Exercised When Larger Public Health Interest Is Involved: Madras High Court [M. Karpagam v. Commissionarate for Welfare of Differently-Abled & Anr.]
A Division Bench of Former Chief Justice Sanjib Banerjee and Justice Senthilkumar Ramamoorthy expressed its reservation over 'right to refuse' Covid-19 vaccine as its administration involves larger interest of 'public health'. "Indeed, vaccinating oneself may not only be to protect oneself but also in the larger interest of public health," it observed. The observation was made after the State reported that there is reluctance among the general public to take the vaccine.
The Bench added, "When such larger interest of public health comes into play and it is possible that a person who has not taken the vaccine may not reveal any symptoms but still be a silent carrier, it is doubtful whether the right to refuse to take the vaccine can be exercised in such circumstances."
38. Right To Be Forgotten- An Acquitted Accused Entitled To Redact His Name From The Judgment, To Protect His Privacy: Madras High Court [Karthik Theodre v. Additional Registrar General]
The Court observed that an accused person who is eventually acquitted of all charges is entitled to have his name redacted from all Court orders in relation to the offence he was accused of in order to uphold his fundamental right to privacy.
Justice N Anand Venkatesh made the observation while adjudicating upon a plea wherein a man earlier accused of offences under Sections 417 and 376 of IPC and subsequently acquitted of all charges moved the High Court to redact his name from its judgment.
39. State Under Obligation To Provide Access To Burial/Cremation Facilities To Members Of All Communities: Madras High Court [Venkateshan v. The Principal Secretary Adi -Dravidar and Tribal Welfare Department]
Stressing that the right to life also encompasses the right to a decent burial or cremation, the Court observed that state is under an obligation to ensure that members of all communities are provided access to burial/cremation facilities. The Bench of Former Chief Justice Sanjib Banerjee and Justice Senthilkumar Ramamoorthy was hearing a plea by one Venkatesan who complained of the failure of the State Administration to provide for a burial ground or area for the cremation of the dead belonging to the petitioner's community at Madhuravalli Village, Thittakudi Taluk, Cuddalore District.
40. 'Rummy & Poker Are Games Of Skills': Madras High Court While Striking Down Online Gaming Ban [Junglee Games India Private Limited v. State of Tamil Nadu]
The Court struck down the Tamil Nadu Gaming and Police Laws (Amendment) Act, 2021 which imposes a ban on playing of games such as rummy and poker on cyberspace with stakes. Section 11 of the impugned legislation also banned games of 'mere skill' if such games are played for wager, bet, money or other stakes.
A Bench comprising Former Chief Justice Sanjib Banerjee and Justice Senthikumar Ramamoorthy was adjudicating upon a batch of petitions filed by gaming companies who offer access to card games like rummy and also poker on virtual platforms.
The Court observed that betting in its original sense cannot be divorced from gambling since the risk-taking element in gambling is betting. Furthermore, it was also opined that there lies no distinction between chance and skill or the preponderance of either in an activity which may be seen and understood to amount to gambling.
Furthermore, the Court observed that gambling is equated with gaming and the activity involves chance to such a predominant extent that the element of skill that may also be involved cannot control the outcome. Whereas, a 'game of skill' on the other hand includes the exercise of skill that can overpower that chance element involved in the activity such that the better skilled would prevail more often than not.
Also Read: 'Excessive and Disproportionate': Madras High Court Strikes Down Tamil Nadu's Law Banning Online Games With Stakes-Read Judgment
41. Guidelines To Repatriate Dead Bodies: Madras High Court Suo Moto Impleads MEA In Pudukkottai Fisherman Case[R. Brundha v. The Principal Secretary, Home Department &Ors.]
Following allegations of the unstitched body being handed over to the family of a Kottaipattinam fisherman who died at the sea in a collision with the Sri Lankan Navy Vessel, the Madurai Bench has suo moto impleaded the Ministry of External Affairs (MEA) and the Consulate General of India (Jaffna) to get a response on the guidelines followed for repatriation of dead bodies to India.
The order was passed by Justice GR Swaminathan days after he ordered the respondent authorities to exhume the fisherman's body and conduct a fresh postmortem, as the fisherman's wife alleged that the Sri Lankan navy fired upon her husband and that he died due to gunshot injury, not drowning.
42. " India A Secular Country" Madras HC Rejects Plea To Bar CM MK Stalin From Heading A Committee Unless He Takes Pledge Before Hindu God
Emphasizing that India is a secular country and that secularism implies tolerance for other religions, the Court dismissed a Public Interest Litigation plea which urged to restrain Tamil Nadu Chief Minister MK Stalin from heading an advisory committee unless he took a pledge before a Hindu god.
The Bench of Former Chief Justice Sanjib Banerjee and Justice PD Audikesavalu further observed thus: "There has to be a time when the prejudice and vendetta have to be shed particularly when it comes to practicing the religion. This is a Secular country and Secularism implies tolerance for the other religion. This country also provides for freedom of expression to its citizens, which, in turn, implies lending an ear to the other point of view."
43. 'Voice Of The Oppressed Not Meant To Be Criminalised': Madras HC Quashes FIR Against Director Pa. Ranjith Over Comments On Chola Empire [P.A. Ranjith v. The Inspector of Police, Thirupananthal Police Station]
The Madurai Bench of Madras High Court quashed criminal proceedings initiated against Film Director Pa. Ranjith for his remarks on the Chola era during a public gathering in 2019.
A single-judge bench of Justice G. Ilangovan was of the view that the criticism meted upon the Chola Kingdom by the Director was based on Historical Books. The petitioner has not exceeded the limit to freedom of speech under Article 19 (1)(a) of the Constitution. The court also concluded that his speech lacked the intent to create enmity between two groups/ communities.
44. Toon Controversy- "Can't Teach Ethics To People; Cartoon Will Lose Life If Taken Without Context": Madras HC Quashes Criminal Defamation Case [Balamurugan v. State]
While quashing a criminal defamation case filed against a person who had published an alleged humiliating and defamatory cartoon on his Facebook page, a Bench of Justice G. Ilangovan ruled that the Court cannot teach ethics to the people and it is for the Society to evolve and follow the ethical standards.
Elaborating on the Toon Controversy, the Court said: "In the recent times another problem, which was created by a cartoonist throughout the world is the "Toon Controversy". That cartoon was about the Prophet Mohammed, which created controversy throughout the World. The discussion emanated from this episode is as to the limitations of freedom of speech and expression and as well as the principles of hate speech and expression."