contempt of court? really?

Oh just now i read the article by Arundhati Roy published in Outlook. I am preparing for judicial services for an year. I have been studying law for last  8 years and to be very honest this time ( I love her way of expression) I couldn’t find anything in her article which can offend sensibilities of a person belonging to right wing. At most they can blame her for drawing bad analogy or saying what is not true. But contempt of court? Really? I am confused whether the judges are insensitive (for cancelling Prof. Saibaba’s bail)  or  hyper-sensitive?

by the way here is the link o the article :http://www.outlookindia.com/article/professor-pow/294265

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Court disregarding its constitutional duty

Law is no stranger to prejudice or moral anxieties. Judicial pronouncements can sometimes cast aside constitutional values and defer to societal biases masquerading as righteousness. The recurrence of “collective conscience” in terror cases, where the threat of terrorism looms so large that it can overshadow the lack of evidence, is only too well known. Even so, the December 23 order of the Nagpur bench of the Bombay High Court takes one’s breath away. It rejected the regular bail plea moved by the lawyers of Delhi University professor, Saibaba, cancelled his interim bail which allowed him to receive treatment till December 31, and ordered him to surrender within 48 hours. Besides, the court issued a notice of criminal contempt to Arundhati Roy for her article, ‘Professor, POW’, published in Outlook magazine. The order will be remembered for its naked display of contempt for civil rights, partisanship and renunciation of judicial independence.

Liquor Free Kerala?

Kerala, a State that accounts for nearly 14 per cent of the country’s liquor consumption as well as one that boasts of 100 per cent literacy, has managed to convince the highest court in the land that its policy of restricting bars that serve liquor to five-star hotels will bring down drinking. It has successfully claimed that if liquor is made prohibitively expensive, the State’s youth would be “practically compelled to abstain from public consumption of alcohol”. The court has accepted its argument that its objective was to prohibit all public consumption of alcohol, and that the only reason it made an exception in favour of five-star hotels was in the interest of tourism.

The reasoning behind the Supreme Court’s decision to uphold Kerala’s latest liquor policy is twofold. First, it unexceptionably roots its verdict in the rule that courts ought to be wary of interfering in policy matters. Secondly, and somewhat controversially, it accepts a discriminatory classification in favour of five-star hotels.

source: http://www.thehindu.com/opinion/editorial/only-for-the-rich/article8042338.ece?ref=relatedNews

I am yet to read the judgement but i think supreme court erred in upholding this policy. I am doubtful whether such restrictive and prohibitory policies can be successful. State’s concern for public health is appreciable but shouldn’t they focus on production/manufacturing side than consumption. And I too find the exemption for five-star hotels unreasonable. Is supreme court trying to say that those who go to five star hotel their health is not so important? And the first reasoning that since its policy matter, court shouldn’t interfere, makes me laugh. because the ground has been used in past as per convenience and supreme court on numerous occasions struck down govt. policies for being violative of article 14.

Rajiv killers cannot be freed without Centre’s “concurrence” as CBI was probe agency: SC

I am so tired. But will read this one. this is last judgement for today.

case: Union Of India vs V. Sriharan @Murugan & Ors 

It all began on February 18 last year when the apex court commuted the death sentences of Santhan, Murugan and Perarivalan to life sentences in view of the delay in deciding their mercy pleas and left it to the “appropriate government” to consider granting them remission. Jayalalithaa (chief minister of Tamil Nadu0 seized the opportunity and announced that she would release all seven convicts.

it was asserted in the letter issued by state govt.  that since the crime was investigated by the Central Bureau of Investigation (CBI) and as per Section 435 of the Code of Criminal Procedure, 1973, the State Government, while exercising its power under Section 432 of the Code, must act after consultation with the Central Government, accordingly, it requested to indicate the views of the Union of India within three days on the proposal to release the seven persons mentioned above.

Writ petition was filed under Article 32 of constitution seeking quashing of that letter. ( why under article 32? it should have been instead under article 131)
Grounds: what is proposed to be done by the State of Tamil Nadu in exercise of power of remission in the present case is illegal and without jurisdiction because (1) The State Government is not the ‘appropriate Government’ in the present case; (2) Alternatively, without prejudice, the proposal by the State Government is contrary to law, and does not follow the procedure set out under the Code.
Reasons:
1. a bare reading of the definition of “appropriate Government” under Section 432(7) of the Code reveals that in cases where the sentence is for an offence against any law relating to a matter to which the executive power of the Union extends, the “appropriate Government” in that respect would be the Central Government. It is further pointed out that as per the proviso to Article 73, the executive power of the Union referred to in Article 73(1)(a) shall not, save as expressly provided in the Constitution or in any law made by the Parliament, extend in any State to matters with respect to which the Legislature of the State also has power to make laws. It is argued that the proviso to Article 73 is excluded by Section 432(7) of the Code as it is only applicable where there is no express provision to maintain the executive power of the Union. Similarly, proviso to Article 162 of the Constitution limits the executive power of the State with respect to any matter where both the Legislature of the State and the Parliament have power to make laws, where the Constitution or any law has expressly conferred executive power upon the Union. Thus, it was submitted that the proviso contemplates that the executive power of the State may be overcome by the executive power of the Union through the provisions of the Constitution or any other law made by the Parliament. The Code is, therefore, one avenue through which this may be done and has been exercised through Section 432(7) to give primacy to the executive power of the Union. Learned Attorney General further submitted that based on a reading of Articles 73 and 162 read with Section 432(7) of the Code, the “appropriate Government” in the present case would be the Central Government, as the Indian Penal Code falls under the concurrent List, to which the executive power of the Union also extends.
2. The entire investigation of the case was handed over to the CBI, at this stage, the State cannot claim that it is the appropriate Government.
3. The State Government, without considering the merits and facts of the case, hastily took a decision to remit the sentence and release seven convicts which is contrary to the statutory provisions and also to the law laid down by this Court.
4. State Government could not have suo motu, without an application, initiated the process of remitting the sentence and releasing the convicts. and relied on the decision of this Court in Mohinder Singh vs. State of Punjab, (2013) 3 SCC 294
5. Alternatively, it is submitted that assuming Section 435(2) of the Code is applicable, the use of the term ‘consultation’ under Section 435(1) of the Code should be interpreted to mean ‘concurrence’.
6. In addition, submitted that once the death sentence of a convict has been commuted into life imprisonment, the same has to be interpreted to mean the entire life of the convict and the executive cannot exercise the power of remission of sentence thereafter and for that relied upon Swamy Shraddananda vs. State of Karnataka, (2008)
thus court has been called upon to decide the legitimacy of the proposal of the State Government to release Respondent Nos. 1 to 7, who are facing life sentence.
but court didn’t make any determination and framed few question and directed the matter to be decided by larger bench. ( i need to check it again because i am not sure)
UPDATE
Verdict of constitutional bench on questions referred to it by three judges bench is out in public domain and to my surprise it has gone to an extent of creating a new category of punishment, taking away power of governor vested in him by the Constitution. Its a huge judgement. I doubt i will be able to read the entire judgement but I will try.
Case:

compensation to victims in criminal trial

Another judgement reading.

Case: Manohar Singh vs. State of Rajasthan and Ors

In the case accused persons were convicted by trial court under section 323, 324, 325 and 326 IPC. In appeal, Court of Sessions (First appellate authority in criminal cases in India) set aside conviction for all offences except under section 323 and it also set aside sentence of imprisonment and granted probation on condition of paying fine i.e. Rs 5000 to victims. Revisional Application by appellate to High Court dismissed and then appeal to Supreme Court on the ground that fine imposed by not adequate.

court observed: “Order of sentence in a criminal case needs due application of mind. The Court has to give attention not only to the nature of crime, prescribed sentence, mitigating and aggravating circumstances to strike just balance in needs of society and fairness to the accused, but also to keep in mind the need to give justice to the victim of crime. In spite of legislative changes and decisions of this Court, this aspect at times escapes attention. Rehabilitating victim is as important as punishing the accused. ”

court referred to its various previous decisions wherein it lamented non-use of the sections 357 and 357A of Criminal Code Code 1973 providing for compensation to victims. In one of its judgements observations were made: “Sub-section (1) of Section 357 provides power to award compensation to victims of the offence out of the sentence of fine imposed on accused. … It is an important provision but courts have seldom invoked it. Perhaps due to ignorance of the object of it. It empowers the court to award compensation to victims while passing judgment of conviction. In addition to conviction, the court may order the accused to pay some amount by way of compensation to victim who has suffered by the action of accused. It may be noted that this power of courts to award compensation is not ancillary to other sentences but it is in addition thereto. This power was intended to do something to reassure the victim that he or she is not forgotten in the criminal justice system.”

But question is whether courts have a duty to advert to the question of awarding compensation to the victim and record reasons while granting or refusing relief to them? According to court, the language of Section 357 CrPC at a glance may not suggest that any obligation is cast upon a court to apply its mind to the question of compensation since in its first and third clause it uses the word “may” but simultaneously observed that “cases may arise where a provision is mandatory despite the use of language that makes it discretionary.”

Thus held that the provision confers a power coupled with a duty on the courts to apply its mind to the question of awarding compensation in every criminal case because not doing so would defeat the very object behind the introduction of the provision. Section 357 Cr.PC confers a duty on the court to apply its mind to the question of compensation in every criminal case. It necessarily follows that the court must disclose that it has applied its mind to this question in every criminal case and And disclosure is best demonstrated by recording reasons in support of the order or conclusion.

also referred to case K.A. Abbas H.S.A. vs. Sabu Joseph and anr wherein court held that a sentence of imprisonment can be granted for default in payment of compensation awarded under Section 357(3) CrPC. (why was it referred to?)

In last para court increased the amount from 5000 to 50,000 rs.

Following is one useless paragraph quoted by court in judgement. I am pasting it here because no matter how useless it may be for purpose of deciding the issue in hand I found it interesting and also something which I can use during my exam to fetch more marks. At times I wonder why cant court just decide the issue in a very clear and straight forward manner than discussing random things in a random manner.

” This shift from retribution to restitution began in the mid-1960s and gained momentum in the decades that followed. Interestingly the clock appears to have come full circle by the lawmakers and courts going back in a great measure to what was in ancient times common place.” Court referred to Article by Harvard Law Review (1984) summing up historical perspective of this concept. “Far from being a novel approach to sentencing, restitution has been employed as a punitive sanction throughout history. In ancient societies, before the conceptual separation of civil and criminal law, it was standard practice to require an offender to reimburse the victim or his family for any loss caused by the offense. The primary purpose of such restitution was not to compensate the victim, but to protect the offender from violent retaliation by the victim or the community. It was a means by which the offender could buy back the peace he had broken. As the State gradually established a monopoly over the institution of punishment, and a division between civil and criminal law emerged, the victim’s right to compensation was incorporated into civil law”

Source: http://indiankanoon.org/doc/195057826/

http://www.livelaw.in/best-of-2015-read-25-significant-judgments-delivered-by-supreme-court-of-india-this-year/

Unwed mothers can become the sole guardian of child: SC | Live Law

Supreme Court in its latest judgement speaking through hon’be Vikramajit Sen J. held that: Unwed mothers can become the sole guardian of child without disclosing father’s name or his consent. Judgement was directed against order of Delhi High Court.

Case Name: ABC vs. State (NCT of Delhi) 2015

Reading judgement. a unwed lady gives birth to a child in 2010 and raises the child own her own without any help coming from the putative father and wants to make child nominee in insurance policies. for which she requires guardianship certificate. She applied under section 7 of Guardians and Wards Act 1890 (applicable to Christians, as appellate in case is christian) for declaring her sole guardian of the child but the Act under section 11 requires a notice to be sent to parents ( here putative father) before declaring a person guardian. The lady published notice of the petition in a newspaper but didn’t want to name the father. Henc her petition was dismissed. Her appeal in Delhi High Court against the dismissal order was also dismissed at the very threshold on the ground that putative father may have interest in welfare of the child and child also have right to know about his/her father.

The lady (appellate) argued that since under said section 7 interest of child is paramount, disclosing the name of father who is already married to someone else and chances of his not-owning the child as his own child and consequent controversy is against interest of child. Secondly appellate has right to privacy.

It was contended on behalf of the State that Section 11 requires a notice to be given to the ‘parents’ of a minor before a guardian is appointed; and that as postulated by Section 19, a guardian cannot be appointed if the father of the minor is alive and is not, in the opinion of the court, unfit to be the guardian of the child. The impugned judgment is, therefore, in accordance with the Act and should be upheld.

Court held that respondent’s interpretation does not impart comprehensive significance to Section 7, which is the quintessence of the Act. As the intention of the Act is to protect the welfare of the child, the applicability of Section 11 would have to be read accordingly.

Court referred to Hindu Guardianship and Minority Act, Muslim Personal Law, Indian Succession Act, Children Act 1989 (United Kingdom), Guardianship of Infants Act 1964(Ireland), Article 176 of the Family Code of the Philippines, Care of Children Act 2004 (New Zealand) to conclude that the preponderant position that it is the unwed mother who possesses primary custodial and guardianship rights with regard to her children and that the father is not conferred with an equal position merely by virtue of his having fathered the child.

court observed: “It seems to us that a man who has chosen to forsake his duties and responsibilities is not a necessary constituent for the well being of the child. The Appellant has taken care to clarify that should her son’s father evince any interest in his son, she would not object to his participation in the litigation, or in the event of its culmination, for the custody issue to be revisited.”

Interpretation of law: “In a case where one of the parents petitions the Court for appointment as guardian of her child, we think that the provisions of Section 11 would not be directly applicable. It seems to us that Section 11 applies to a situation where the guardianship of a child is sought by a third party, thereby making it essential for the welfare of the child being given in adoption to garner the views of child’s natural parents.

Section 11 is purely procedural; we see no harm or mischief in relaxing its requirements to attain the intendment of the Act. Given that the term “parent” is not defined in the Act, we interpret it, in the case of illegitimate children whose sole caregiver is one of his/her parents, to principally mean that parent alone. Guardianship or custody orders never attain permanence or finality and can be questioned at any time, by any person genuinely concerned for the minor child, if the child’s welfare is in peril. The uninvolved parent is therefore not precluded from approaching the Guardian Court to quash, vary or modify its orders if the best interests of the child so indicate. There is thus no mandatory and inflexible procedural requirement of notice to be served to the putative father in connection with a guardianship or custody petition preferred by the natural mother of the child of whom she is the sole caregiver.”

Thus it is no longer necessary to state the name of the father in applications seeking admission of children to school, as well as for obtaining a passport for a minor child. However, in both these cases, it may still remain necessary to furnish a Birth Certificate. if a single parent/unwed mother applies for the issuance of a Birth Certificate for a child born from her womb, the Authorities concerned may only require her to furnish an affidavit to this effect, and must thereupon issue the Birth Certificate, unless there is a Court direction to the contrary.

Words:

Nodus ( a problem or difficulty)

Conundrum (difficult question)

Ubiquitous (all over the place, found everywhere, universal)

Wrangle (long and complicated dispute)

Nebulous (vague, hazy, ill-defined)

Apposite (Apt in the circumstances)

Fiat (formal authorization or decree)

 

 

 

Source: Unwed mothers can become the sole guardian of child: SC | Live Law

on abolition of Rajya Sabha

Rajya Sabha should be abolished. In recent pasts I have heard or read this argument especially from people belonging to right wing. the reason put forward is that loksabha which consists of directly elected members of parliament are real representatives and if a party has majority in loksabha, it should be allowed to pass certain bills successfully without being obstructed by rajya sabha (in which ruling party doesnt have sufficient majority) whose members are indirectly elected. The article I read says that the argument is flawed. firstly because the very purpose of creating another house of parliament is prevent the hasty legislation and secondly because in a first-past-the post-system, lok sabha members cant claim themselves to be only real and true representatives of majority.

Source: http://www.thehindu.com/opinion/op-ed/parliament-proceedings-misdiagnosis-of-the-rajya-sabha-malfunction/article8018736.ece?ref=relatedNews