Ghulam Nabi Azad allowed to visit Jammu, Srinagar, Anantnag, and Baramulla – A Supreme Court bench allowed former Jammu and Kashmir chief minister and senior Congress leader, Ghulam Nabi Azad to visit Jammu and Kashmir. The petition was allowed on the condition of Azad not engaging in any political activities during the visit. Azad had tried to visit the state thrice before filing the petition on humanitarian grounds. He further submitted that “[a]lmost one-third of Kashmiri people are lakhs who do labour to earn their daily livelihood and nobody is bothered to know how are they surviving”. Azad also sought permission to check on the conditions of people living in the state after the restrictions imposed in the aftermath of the revocation of Jammu and Kashmir’s special status. [Ghulam Nabi Azad v. Union of India and anr., Writ Petition (Civil) No. 1164 of 2019, date of order: 16.09.2019]
CPI(M) politician Tarigami to return to Kashmir – A Supreme Court bench allowed CPI(M) MLA in the now dissolved Jammu and Kashmir state assembly, Mohammed Yousuf Tarigami, to return to his home in Jammu and Kashmir. CPI(M) General Secretary, Sitaram Yechury had met him on receiving permission from theCourt on 29 August 2019. Tarigami had been detained following the revocation of Jammu and Kashmir’s special status. Based on a report submitted by Yechury, the Court hadon 5 September 2019 directed in favour of shifting Tarigami to AIIMS, Delhi for his treatment. The bench examined Tarigami’s medical reports noting that he was kept in the Jammu and Kashmir Guest House in Delhi though he had been discharged from AIIMS. It ruled in Tarigami’s favour holding that he was at liberty to return to Jammu and Kashmir, though it declined to give him permission to move about freely as he pleased within the state. [Sitaram Yechury v. Union of India and anr., Writ Petition (Criminal) No. 229/2019, date of order: 16.09.2019]
Public Interest Litigation filed in Supreme Court against illegal detention of children in Jammu and Kashmir – A Public Interest Litigation (PIL) has been filed in the Supreme Court given news reports of illegal detention of children in Jammu and Kashmir. The PIL filed by Ms. Enakshi Ganguly, child rights expert and Professor Shanta Sinha, first Chairperson of the National Commission for Child Rights (NCPCR) seeks urgent intervention of the Court in the matter. News has reported extensively on such detentions by security forces and injuries caused as a result. The petitioners invoked the constitutional duty of the Court to prevent excesses and to act as parens patriae to the children. The PIL further submits that if a child is allegedly a “stone-pelter” they should not be detained without express written orders of a judicial authority, describing the provision of law permitting such detention. The petitioners have contended that the state is acting in violation of the Constitution, specific laws with respect to children, and commitments under international child rights. The PIL filed also prays for a direction to the government to submit a status report, production of detained children before the Juvenile Justice Committee of the state High Court, direction for payment of compensation to children who have been injured or illegally detained and to families of children who have died, and identification of minors detained through an age census conducted under the supervision of the Juvenile Justice Committee. [Enakshi Ganguly and anr. v. Union of India and ors., Writ Petition (Civil) No. 001166/2019), date of order: 16.09.2019]
Service rendered in ‘work charged’ establishment to be treated as qualifying service for pension – Allowing appeals filed by employees against the Uttar Pradesh state government, the Supreme Court has held that services which are rendered in the work-charged establishment should be treated as qualifying service for the grant of pension. As per Uttar Pradesh Retirement Benefit Rules, 1961 period of service in work charged establishment do not qualify for pension. The Court noted that work charged employees are subjected to similar conditions as regular employees. It noted the misuse of work charged employment concept by offering employment on exploitative terms when work is regular in nature. [Prem Singh v. State of Uttar Pradesh and ors., Civil Appeal No. 6798 of 2019 @ Special Leave Petition © No. 4371 of 2011, date of order: 02.09.2019)
Succession and inheritance of persons of Goan domicile to be governed by the Portuguese Civil Code – The Supreme Court upheld that a person of Goan domicile’s rights of successions and inheritance shall be governed by provisions of the Portuguese Civil Code, 1867 as applicable in Goa. The Court further clarified that even in respect of properties of a Goan domicile situated outside Goa, anywhere in India, succession and inheritance will be governed by the 1867 Code. The Court further held that despite its foreign origins the Portuguese Civil Code is in sum and substance an Indian law and hence no principles of private international law are applicable to the issue. [Jose Paulo Coutinho v. Maria Luiza Valentina Pereira and anr., Civil Appeal No. 7378 of 2010, date of order: 13th September, 2019)
Mere ‘simple allegations’ of fraud do not make a dispute non-arbitrable – The Supreme Court has reaffirmed that mere allegation of fraud simplicitor may not be a ground to nullify the effect of arbitration agreement between the parties. The Court observed that the matter involved “simple allegations” in absence of any allegation of fraud which would vitiate the partnership deed as a whole, or the arbitration clause in the deed in particular. It held that only cases where the Court finds very serious allegations of fraud amounting to a case of criminal offence or where allegations of fraud are complicated that it becomes essential for them to be decided only by civil court taking into account evidence that the Court could set aside the agreement by dismissing the application and proceed with the suit on merits. The same could be done in cases where fraud goes to the extent of the validity of the entire contract including arbitration clause or the validity of the arbitration clause itself. (Rashid Raza v. Sadaf Akhtar, Civil Appeal No. 7005 of 2019, date of order: 04.09.2019)
Supreme Court refers Center’s review against judgment diluting the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act to a three-judge bench – The Supreme Court referred the Centre’s petition seeking review of a 2018 Supreme Court judgment to a three-judge bench. The 2018 judgment allegedly dilutes provisions of arrest under the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act. The opposite counsel submitted that the plea for review had become infructuous owing to the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Amendment Act, 2018 passed by the Parliament, neutralising implications of the 2018 judgment. The amendment contains a non-obstante clause and mandate for arrests per procedure under the said Act or the Code of Criminal Procedure. In an appeal against the amendment, the Court had refused to stay its operation. The 2018 judgment had held bar against grant of anticipatory bail to be not absolute, mandated arrest of public servants under the said Act after prior approval by the Senior Superintendent of Police, and also allowed for preliminary enquiry to ascertain if allegations under the said Act are frivolous or motivated.
Delhi High Court issues directions to government HRLN’s PIL seeking reforms in prisons – The Delhi High Court issues directions to the Delhi government disposing off writ petitions filed by Human Rights Law Network, pertaining to prison reforms in Delhi. The petitions had been moved in response to the custodial death of a prisoner, following which no compensation had been paid to the deceased’s family; the government claimed that the prisoner had died a natural death. In the writ petitions, HRLN prayed for a series of reforms in prisons, while also demanding for free calls for prisons to fall family members and lawyers, more visiting hours for Inspecting Judges, and an Independent Monitoring Authority to overlook the implementation of the suggested reforms. The Court directed for constitution of Board of Visitors in all prisons, provision of sufficient food and medicine as per the National List of Essential Medicines, ensuring adequate medical staff and doctors, following of directions laid down by Supreme Court, providing Board of Visitors with jail passes for surprise visits, inter alia. The Court refused the plea to constitute an independent monitoring authority. The Court is yet to hear the petition concerning custodial deaths.
NCDRC reiterated that haj pilgrims are not consumers of Haj Committee – The National Consumer Disputes Redressal Commission (NCDRC) has reiterated that the Haj Committee of India does not fall within the provisions of the Consumer Protection Act, 1986, as a result of which haj pilgrims are not its consumers. The decision came in the adjudication of a revision petition filed by the Haj Committee. The original complaint had been filed against Al Wafeer Airlines and the Haj Committee which had been allowed by the District Forum in absence of written submissions and dismissal of appeal before the State Commission for non-joinder of Al Wafeer Airlines. The Commission reaffirmed a previous order that Haj Committee renders services without any profit motive and no fees or service charges are collected. Therefore, Complainants cannot be said to be consumers of the Haj Committee of India. [Haj Committee of India v. Mohd. Ayub Tonk and anr., Revision Petition No. 2793 of 2018, date of order: 12.09.2019]
Protection from arrest in MCOCA case can be granted in absence of mens rea – Allowing a writ petition, the Bombay High Court granted protection from arrest in a case registered under the Maharashtra Control of Organised Crime Act. The Court held that there was non-application of mind on part of the IG, CID who had granted sanction to prosecute the petitioner under the Act given absence of mens rea. The petitioner had been denied anticipatory bail owing to specific bar to grant the same in cases registered under the said Act. The Court reaffirmed that there can be no crime without an evil mind and that wrongful intent is the essence of an offence without which it cannot be established. (Surjitsingh Bhagatsingh Gambhir v. the State of Maharashtra and ors., Writ Petition No. 913 of 2019, date of pronouncement of order: 13.09.2019) (IPA Service)