Friday, December 13, 2019

12th Dec. 2019
In India, The Citizenship (Amendment) Bill, 2019 amends the Citizenship Act of 1955 to give eligibility for Indian citizenship to illegal migrants who are Hindus, Sikhs, Buddhists, Jains, Parsis and Christians from Afghanistan, Bangladesh and Pakistan, and who entered India on or before 31 December 2014. The bill does not include Muslims.
The passage of the bill caused protests in India. Internet was shut down in the north-eastern state of Assam and curfew declared in Assam and Tripura due to huge protests. However, the army had to be called in to deploy as protestors defied those curfews. Railway services were also suspended.
The main opposition to Bill is that it is against secular constitution of India. The Preamble serves as an introduction to the Constitution. The Preamble was amended by the 42nd Constitutional Amendment Act in 1976, which determined to constitute India into a Sovereign, Socialist, Secular, and Democratic republic. It secures justice, liberty, equality to all the citizens of India and promotes fraternity among the people. The term secular in the Constitution of India means that all the religions in India get equal respect, protection and support from the State. Articles 25 to 28 in Part III of the Constitution guarantee Freedom of Religion as a Fundamental Right.
In my view the bill does not violate the Constitution of India as these provisions are applicable to citizen of India and not for those who have yet to become citizen.
The illegal migrants from Bangladesh who are Muslim, living in border states of India are protecting most as they are likely to be deported and are not included in National Citizenship Register after their illegal entry in India since long ago.
The National Register of Citizens is a register maintained by the Government of India containing identification of Indian citizens of the Assam state. The register was initially, specifically made for Assam state of India. The register was first prepared after the 1951 Census of India and since then it has not been updated until recently. The process of updating of state's part of NRC in the state of Assam started in the year 2013 when the Supreme Court of India passed an order for its updating. Since then, the Supreme Court of India has been monitoring it continuously. This has created crisis of identity of citizenship in Assam.
The bill was also criticized by the United States Commission on International Religious Freedom. USCIRF is a U.S. federal government commission created by the International Religious Freedom Act (IRFA) of 1998. This is contradictory to the 2019 USCIRF report, the chairman Tenzin Dorjee disagreed with the commission's designation of India as a CPC citing having lived in India for 30 years as a religious refugee stating that "India is an open society with a robust democratic and judiciary system. India is a great civilization, and since ancient times she has been a country of multifaith, multilingual, and multicultural / diversity.
United State of America is also struggling with problem of illegal migration and so far not able to resolve this problem and taking small steps like erecting walls on border; Deferred Action. USA has not taken any legislative step to grant citizenship to illegal migrant or identify such illegal migrants in Census of 2020 as Court did not allow question on citizenship in US Census of 2020.

Wednesday, April 24, 2019

24th April 2019

Sexual Harassment at workplace – Supreme Court of India
A woman working as assistant in apex court in India, on oath in details, accused the present Chief Justice of India Mr. Justice Ranjan Gogoi of sexual harassment. She further in details accused Judge for orchestrated a campaign of retaliation against her and her family when she refused his advances last October 2018. Judge has denied the charges against him, saying there were forces at work to “deactivate” the position of chief justice. The complainant woman and his other family members were dismissed from their respective jobs as victimization. The Supreme Court Bar Association and the Supreme Court Advocates on Record Association, representing lawyers practicing in the Supreme Court of India, have been critical of the Chief Justice’s handling of the case against him; when Judge himself is judging cause against himself. One lawyer subsequently has alleged on oath that there is conspiracy against Judges. Bench of judges is examining this affidavit on conspiracy and summoned chiefs of the Central Bureau of Investigation, Intelligence Bureau and Delhi Police in chamber to talk about conspiracy theory. Union minister Arun Jaitley on Sunday in his Facebook post said lending shoulder to Judge “completely unverified allegations coming from a disgruntled person with a not-so-glorious track record is aiding the process of destabilization of the institution of the Chief Justice of India.
The events and views expressed above, shows an inquisitive fact about what is cooking up in apex court. The allegation of woman cannot be ignored and must be examined without any biased. Judge is a human being who can be susceptible to wrong doings. The allegations of sexual harassment against Judge holding such high court is not new. Earlier a Law intern alleged sexual harassment by Justice AK Ganguly, a Judge in Supreme Court of India which Judge refuted. A three-member panel of SC judges had indicted Justice AK Ganguly on December 6, 2013 saying 'prima facie' found the allegations correct.
The complainant’s affidavit raises serious allegations of sexual harassment and abuse of power of the office of CJI. The CJI must also explain the larger conspiracy angle he attached to the allegations – who would attack the judiciary and why?

The Supreme Court cannot continue in silence and wish away the complaint. The Internal Complaints Committee set up to deal with sexual harassment must look into the issue immediately. It is incumbent on the senior-most judges to ensure fair and transparent proceedings in the matter.
There is need to revive The Judicial Standards and Accountability Bill which 15th Parliament of India in 2014 could not pass, which tries to lay down enforceable standards of conduct for judges.  It also requires judges to declare details of their and their family members' assets and liabilities.  Importantly, it creates mechanisms to allow any person to complain against judges on grounds of misbehavior or incapacity and subsequent discharge from the office. At present, even if allegations against a Judge are found to be true, Judge cannot be removed from office without impeachment proceedings in Parliament of India. Impeachment is a difficult process when parliamentarian are divided in fractions. Since independence in 1947, I do not think if any judge was ever impeached. I cannot believe that all Judges are morally correct and are competent to hold public office till retirement when society is full of corrupt practices.

Sunday, October 7, 2018

Supreme Court of India on Benefit of doubt when given in criminal trial

Supreme Court of India in Jose @ Pappachan v. The Sub- Inspector of Police, Koyilandy (2016) 10 SCC 519 in the following words:
"53. It is a trite proposition of law, that suspicion however grave, it cannot take the place of proof and that the prosecution in order to succeed on a criminal charge cannot afford to lodge its case in the realm of "may be true" but has to essentially elevate it to the grade of "must be true". In a criminal prosecution, the court has a duty to ensure that mere conjectures or suspicion do not take the place of legal proof and in a situation where a reasonable doubt is entertained in the backdrop of the evidence available, to prevent miscarriage of justice, benefit of doubt is to be extended to the accused.
Such a doubt essentially has to be reasonable and not imaginary, fanciful, intangible or non-existent but as entertainable by an impartial, prudent and analytical mind, judged on the touch stone of reason and common sense. It is also a primary postulation in criminal jurisprudence that if two views are possible on the evidence available, one pointing to the guilt of the accused and the other to his innocence, the one favourable to the accused ought to be adopted."

Supreme Court of India on consideration of circumstantial evidence in criminal trial

Supreme Court of India in Gagan Kanojia v. State of Punjab (2006) 13 SCC 516, the Supreme Court made the following observations, when considering convictions made on the basis of circumstantial evidence:
"Indisputably, charges can be proved on the basis of the circumstantial evidence, when direct evidence is not available. It is well settled that in a case based on a circumstantial evidence, the prosecution must prove that within all human probabilities, the act must have been done by the accused. It is, however, necessary for the courts to remember that there is a long gap between 'may be true' and 'must be true'. Prosecution case is required to be covered by leading cogent, believable and credible evidence. Whereas the court must raise a presumption that the accused is innocent and in the event two views are possible, one indicating to his guilt of the accused and the other to his innocence, the defence available to the accused should be accepted, but at the same time, the court must not reject the evidence of the prosecution, proceeding on the basis that they are false, not trustworthy, unreliable and made on flimsy grounds or only on the basis of surmises and conjectures. The prosecution case, thus, must be judged in its entirety having regard to the totality of the circumstances. The approach of the court should be an integrated one and not truncated or isolated. The court should use the yardstick of probability and appreciate the intrinsic value of the evidence brought on records and analyze and assess the same objectively."

Friday, September 28, 2018

Adultery under Section 497 IPC is no longer a crime, could be a ground for divorce

On 27th Sept. 2018, Supreme Court of India in case Joseph Shine Vs. Union of India WP Criminal 194/2017 held that adultery u/s 497 Indian Penal Code is not an offense. Adultery could be a ground for divorce. Section 497 reads: "Whoever has sexual intercourse with a person who is and whom he knows or has reason to believe to be the wife of another man, without the consent or connivance of that man, such sexual intercourse not amounting to the offence of rape, is guilty of the offence of adultery." Section 497 used to be read with CrPC Section 198(2) in the matters of prosecution for offences against marriage. The combined reading of the adultery laws allowed the aggrieved husband of the married woman in adulterous relationship to file a complaint. But same right was not available to an aggrieved wife if her husband was found to be in an adulterous relationship. The rationale of the provision suffers from the absence of logicality of approach and, therefore, we have no hesitation in saying that it suffers from the vice of Article 14 of the Constitution being manifestly arbitrary. It is discernible that the Court, with the passage of time, has recognized the conceptual equality of woman and the essential dignity which a woman is entitled to have. There can be no curtailment of the same. But, Section 497 IPC effectively does the same by creating invidious distinctions based on gender stereotypes which creates a dent in the individual dignity of women. Besides, the emphasis on the element of connivance or consent of the husband tantamounts to subordination of women. Therefore, we have no hesitation in holding that the same offends Article 21 of the Constitution
We may repeat at the cost of repetition that if it is treated as a crime, there would be immense intrusion into the extreme privacy of the matrimonial sphere.
To treat it as a criminal offence will offend the two facets of Article 21 of the Constitution, namely, dignity of husband and wife, as the case may be, and the privacy attached to a relationship between the two. In case of adultery, the law expects the parties to remain loyal and maintain fidelity throughout and also makes the adulterer the culprit. This expectation by law is a command which gets into the core of privacy. That apart, it is a discriminatory command and also a socio-moral one. Two individuals may part on the said ground but to attach criminality to the same is inapposite. The jurisprudence in England, which to a large extent, is adopted by this country has never regarded adultery as a crime except for a period of ten years in the reign of Puritanical Oliver Cromwell. As we see the international perspective, most of the countries have abolished adultery as a crime. We may also usefully note here that adultery as a crime is no more prevalent in People‘s Republic of China, Japan, Australia, Brazil and many western European countries The theories of punishment, whether deterrent or reformative, would not save the situation. A punishment is unlikely to establish commitment, if punishment is meted out to either of them or a third party.

Thursday, September 27, 2018

Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Amendment Act 2018,

On 20th March 2018, Supreme Court of India in case Dr. Subhash Kashinath Mahajan vs The State Of Maharashtra, Criminal Appeal 416 of 2018, held that Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989, process of Court was abused in this case; there is no absolute bar in this Act for anticipatory bail, arrest should be only after approval which can be scrutinized by Magistrate for further detention; to avoid false implication of innocent, complaint can only after enquiry by Deputy Superintendent of Police; in case of false complaint, complainant would be liable for disciplinary action and contempt of Court.
On 17th Aug. 2018, Parliament of India passed Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Amendment Act 2018, which received assent of President of India to make it a law. By this amendment, decision of Supreme Court of India was nullified.
This matter was largely agitated and debated by public in India.
Our Law Firm is of the view that law should be amended on the basis of past data as this law was originally enacted in 1989. Article 15 of Constitution of India prohibits discrimination on ground of sex, caste, religion or place of birth. Since long this prohibition is not achieved and for extraneous consideration for political gain; political parties are trying to appease some group to keep them in their vote bank, which is abuse of democratic process. State should endure to make country free of caste, which State has failed in many decades. It is equally responsibility of State to prevent misuse of law or filing of false complaint. The Amendment is inclined to one side and ignored that on false complaint fundamental of right of liberty shall be breached without judicial review and a person shall be victimized without trial.

Sunday, September 23, 2018

Privacy is protected rights under Indian Constitution

On 24th Aug. 2017 nine Judges Bench of Supreme Court of India in case Justice K S Puttaswamy (Retd.) and others Vs. Union of India, Civil Writ 494 of 2014 held that right of privacy is protected as an interinsic part of the life and personal liberty under Article 21 and as part of freedoms guaranteed under Part III of Constitution of India subject to restrictions specified, relatable to that part.