Vijayakant moves court against suspension
Case posted for March 2
The Madras High Court on Wednesday admitted a writ petition by Desiya Murpokku Dravida Kazhagam (DMDK) president and Leader of the Opposition in the Tamil Nadu Assembly, Vijayakant, challenging his 10-day suspension from the House by a resolution.
When the petition came up before Justice S. Rajeswaran, the Government Pleader took notice for the Assembly Secretary. The Judge ordered that the matter be posted for March 2 to enable the respondent to argue the matter with regard to both maintainability of the writ petition and the application seeking stay of the operation of the impugned resolution.
Mr. Vijayakant sought a declaration that the resolution adopted on February 2 by the Assembly was illegal and null and void.
In the petition, filed through counsel, S.Manimaran, Mr.Vijayakant said the Assembly Secretary by a letter dated February 3 informed him that a resolution had been passed by the House that he should be suspended from participating in the proceedings in the session that was under way and also in the next session continuously for 10 days.
Also, during the suspension period, he would not be entitled to pecuniary benefits, salary, concessions and other privileges in his capacity as the Leader of the Opposition and MLA with effect from February 2.
He was directed to surrender the car allotted to him to the Assembly Secretary’s office.
Mr. Vijayakant said he could not even receive and forward petitions regarding the legitimate grievances of the people of his constituency (Rishivanthiyam) to the government authorities for redressal.
He had been forbidden from attending any government meeting.
He said that by denying him his position as MLA, the people who had elected him as their representative had lost their right and opportunity to redress their grievances through him. This would amount to penalising the electors.
Even the copy of the privileges committee’s report was not furnished to him.
A copy was collected by him from the House Secretariat only after he was suspended.
Thus, all principles of natural justice had been violated.
He submitted that the resolution could not in itself seek to remove or prevent him from exercising his right as an elected representative outside the House.
When a person was elected as the Leader of the Opposition, it was a post which carried with it high responsibilities and indeed the post enjoyed a Cabinet Minister rank.
This privilege could not be interfered with by the ruling party through a voice vote resolution as it would amount to interfering with the working of the opposition party itself.
Nod to fill up Civil Judge vacancies
CHENNAI: The Madras High Court has dismissed a batch of writ petitions challenging a GO and a subsequent notification relating to filling up of 185 vacancies to the posts of Civil Judges in the State. “No case is made out to interfere with the GO and the notification,” Justice K Suguna said on Tuesday. While the GO passed in January this year delegated power to the HC to make the recruitment directly, the subsequent notification inviting applications stipulated various conditions and concessions relating to experience, age and qualifications.
The main contention of the petitioners was that the government and the High Court could not usurp the power to make the recruitment, which vested with the TN Public Service Commission (TNPSC) alone, the constitutional body.
The judge, however, admitted a writ petition challenging a sub-clause of a particular rule stipulated in the notification.
Court upholds detention of ex-councillor
The Madras High Court on Wednesday upheld the detention of K. Dhanasekaran, a former Chennai Corporation DMK councillor, under the Goondas Act.
The order was passed by the Chennai Police Commissioner on September 16, 2011. The detenu is in Central Prison, Vellore.
Challenging the order, his wife D. Vijayakumari filed a habeas corpus writ petition.
The petitioner submitted that the grounds for detention did not reveal that the pre-detention representation of September 6 sent by the detenu to the Home Secretary. The police Commissioner was considered the detaining authority. No order rejecting the representation was communicated to the detenu.
Therefore, on this ground alone, the detention order was liable to be set aside.
In its order, a Division Bench, comprising Justices K. Mohan Ram and G.M. Akbar Ali, said admittedly the averments/allegations made in the pre-detention representation were found in the anticipatory bail petitions placed before the detaining authority.
The same had been referred to and considered by the detaining authority in the grounds of detention. Therefore, non-placement of the representation would not amount to non-application of mind by the detaining authority.
Therefore, on this ground, the detention order could not be set aside, the Bench said and dismissed the petition.
The Bench observed that when the personal liberty of the detenu was being curtailed by the detention order, the detaining authority should take proper care as to whether the pre-detention representation had been placed before him.
It was true that in view of the huge volume of correspondence received at the Commissioner’s office, it would be difficult for the detaining authority to remember the pre-detention representation received. But, that could not be an excuse.
The police Commissioner or detaining authorities should set up a separate cell or a section to exclusively deal with the representations received from persons who anticipated their detention or had been detained.
If such a facility was available and it maintained a register, it would be possible for the Commissioner at the time of passing the detention order to call for details from such cell as to whether any pre-detention representation had been received from the detenu.
Ban on banners: Time to file counter granted
CHENNAI: The government was granted time till February 27 to file its counter-affidavit on a writ petition seeking ban on erection of banners and pandals in public places. Passing interim orders on a public interest writ petition from social worker ‘Traffic’ K R Ramaswamy on January 3 last, the first bench comprising Chief Justice M Y Eqbal and Justice T S Sivagnanam had granted four weeks time to the government to file the counter giving details regarding the steps taken to regulate erection of banners and pandals in public places.
When the matter was taken up today, no such counter was filed. Following a plea from Advocate-General A Navaneethakrishnan to grant more time, the bench directed him to file the counter by that date stating specifically the steps taken for redress of the grievance of the petitioner.
Silicosis victims from M.P. meet Gujarat governor
Silicosis victims from Madhya Pradesh met Gujarat governor Dr. Kamla Beniwal on Tuesday and submitted a memorandum to her regarding the “insensitive and indifferent attitude” of the Gujarat government to their plight.
Silicosis, the killer scourge, affects a substantial population of migrant labourers from Madhya Pradesh’s Jhabua, Alirajpur, Badwani and Dhar districts who cross the border to work in quartz-crushing factories in Godhra and Balasinore in Gujarat.
In 2010, the National Human Rights Commission took cognizance of the death of 238 such labourers and directed the Gujarat government to provide compensation of Rs. 3 lakh to the families of the diseased. The NHRC also directed the Gujarat government to rehabilitate 304 silicosis-affected labourers.
However, the Gujarat government has not abided by the NHRC directives till date and has maintained that the labourers are liable to be compensated either under the Employee State Insurance Scheme under the ESI act or under the Workmen’s Compensation Act.
However, none of the affected has received compensation under either law because of lack of “evidence” (for instance the ESI card or a factory issued identity card) of having worked in a silicosis-causing hazardous industry.
The delegation of victims was led by the Silicosis Peedit Sangh (Silicosis Victims’ Union) and NGO Shilpi Kendra.
“The governor took the matter seriously and assured the victims of quick action on her part,” Amulya Nidhi of Shilpi Kendra , one of the few organizations working with silicosis victims in the region, told The Hindu.
Khumsingh, a victim from Dhyana village of Alirajpur, told the Governor that his three sisters had succumbed to silicosis and he had been forced to sell his cattle and even his farm for treatment.
According to estimates provided by organizations working in the region, over 1,100 labourers from 71 villages of Dhar, Jhabua and Alirajpur are suffering from the disease which has no known cure.
Family of killed fisherman asks for 1 crore in court; India vs Italy row continues
NDTV Correspondent, Updated: February 22, 2012 15:53 IST
New Delhi: The Italian ship involved in the shooting of two Indian fishermen cannot leave India till it provides a bank guarantee of 25 lakhs with a Kerala court.
The family of one of the two fishermen shot dead by Italian marines off the coast of Kochi has asked for one crore as compensation in the Kerala High Court. The fisherman, Jelestine, was killed last week along with his friend, Pinku. The Italian navy men reportedly mistook them for Somalian pirates.
In response to the petition filed by Jelestine’s family, the Kerala High Court has said that the Italian ship involved cannot leave India till a bank guarantee of 25 lakhs is provided in court. However, this is an interim order – both parties will now file counter-affidavits.
The Enrica Lexie was sailing Singapore from Egypt when two of the six armed guards on board the merchant vessel shot the fishermen. (India vs Italy over fishermen deaths: 10 developments)
The deaths have led to huge anger in the large fishing community of Kochi. It’s also turned into an international confrontation, with Italy describing India’s decision to arrest the marines as “unilateral” and “coercive.” A talk between senior officials today did not pave the way for a compromise. Preneet Kaur, India’s junior minister for Foreign Affairs met Italian Deputy Foreign Minister Staffan De Mistura this morning. “Two innocent lives have been taken,” she said. “The law will take its own course.”
Mr De Mistura said the incident took place in international waters “and investigation will ascertain the exact position” of the Italian ship. “We are taking it seriously. We are definitely expressing terrible sadness and regret over the loss of lives,” he said.
Italian officials have stressed that their laws require armed guards to be on board their ships, ; they say the marines should be tried at home according to international laws. But India says that the incident took place within its waters, and that the fishermen were shot at without any provocation. A case of murder has been registered against the two Italians.
HC asks ECoR to take a decision
CUTTACK: The Orissa High Court has directed the General Manager of East Coast Railways (ECoR) to take a decision on having a scheduled stoppage of the Rajdhani Express at Jajpur Keonjhar Road railway station in eight weeks.
Acting on a PIL filed by advocate Jeetendra Pratihari, the division bench of Chief Justice V Gopalagowda and Justice BN Mohapatra has directed the petitioner to submit a representation to the General Manager, ECoR, with all documents to support his claim.
The petitioner had approached the court seeking a direction for having a scheduled stoppage of Rajdhani Express at the Jajpur Road station, which is the only major station for the entire Jajpur and Keonjhar districts and also home to the industrial hub of Kalinga Nagar.
The petitioner submitted that there has been continuous demand for stoppage of the Rajdhani Express there and a representation had been filed before the Member, Railway Board (traffic), in 2006. The petitioner was subsequently informed by the Senior Divisional Commercial Manager of ECoR that the matter was under consideration and the demand would be recommended to the Zonal headquarters within a short period. However, no action had been taken even after a lapse of more than six years.
Panel to re-examine Welukar’s appointment as vice-chancellor
HT Correspondent, Hindustan Times
Mumbai, February 23, 2012
A year-and-a-half after his appointment as vice-chancellor of the University of Mumbai, an aspect of Rajan Welukar’s eligibility will be re-examined by the Search Committee, set up for shortlisting candidates for the post. The decision came in response to two public interest litigations
Hiranandani cant construct on plot before making affordable homes: HC
Published: Thursday, Feb 23, 2012, 9:00 IST
By DNA Correspondent | Place: Mumbai | Agency: DNA
In a major setback to Hiranandani developers, the Bombay high court (HC) on Wednesday restrained them from carrying out any further development at their Powai township before constructing affordable homes as contemplated under the tripartite agreement between the developer, state government and the MMRDA.
The court observed that they were issuing directives for corrective steps instead of punitive action against the developer and government officials. The HC, however, granted liberty to the petitioners “to take up the issue of corruption in a criminal prosecution against any errant public officers and the developer”.
A division bench of chief justice Mohit Shah and justice Roshan Dalvi directed the petitioners, Hiranandani developers and MMRDA metropolitan commissioner, to prepare a statement of buildings and structures put up by Hiranandani in Powai Area Development Scheme (ADS) along with the names, description and number of area and units/flats therein within four weeks.
While hearing two public interest litigations (PIL) by Rajendra Thacker and Medha Patkar respectively, the also directed them to prepare a plan of vacant areas of plots under the Powai ADS within four weeks.
“The developer shall not put up any further construction whatsoever in the remainder of the plot before specifying vacant land and buildings that can be constructed,” the HC said in its order running into more than 30 pages.
The court said that the developer would be entitled to commence any further construction only after obtaining specific permission from the court. The HC observed that the very purpose of the tripartite agreement was to construct smaller flats for affordable housing.
“The developer as well as the flat purchasers appear to have thrown this essential requirement to the winds,” the court observed. “Consequently, the land which was leased upon a pittance of Rs1 per hectare came to be developed as a goldmine realising from such investment millions of rupees worth of real estate.”
The developer has been directed to construct 1,511 flats of 40 square metres and 1,593 flats of 80 square metres without amalgamating any flats. “No two flats shall be sold to the same person or two members of the same family,” the court ordered.
The direction came in the wake of allegations in the PIL that in order to overcome some development conditions, the developer had constructed amalgamated flats or sold adjoining flats to different members of the same family. The PIL further alleged that the flats were converted for commercial use, thereby breaching the terms of the agreement and conditions imposed under the Urban Land Ceiling Act.
Another condition set by the HC for further construction is that the developer shall sell to the state government 15% of the total FSI consumed in plot in form of constructed tenements at Rs135 per square feet.
Narendra Modis Sadbhavana aimed at goodwill: Gujarat HC
Published: Wednesday, Feb 22, 2012, 17:14 IST
By DNA Correspondent | Place: Ahmedabad | Agency: DNA
Gujarat high court on Tuesday rejected a public interest litigation (PIL) challenging chief minister Narendra Modi’s Sadbhavana fasts across the state and the huge expenditure made on them, saying ‘Sadbhavana’ was launched for goodwill and in good faith.
A bench consisting of acting chief justice Bhaskar Bhattacharya and justice JB Pardiwala said: “If such questions are allowed to be raised before court, every expenditure of the state can be called in question, both as to the nature and extent thereof, in which event the functioning of the government itself will be hampered.”
Regarding court’s jurisdiction, the bench said: “Judicial interference is permissible when the action of the government is unconstitutional and not when such action is not wise or that the extent of expenditure is not for good of the state. All such questions must be thrashed out in the legislature and not in courts.” The court also set aside the contention of the petitioner that the Sadbhavana fasts were politically motivated. The court observed: “Assuming for the moment that a government is indirectly canvassing solely in the interest of the political ideology to which it belongs, even then this court, in exercise of its power under Article 226 of the Constitution, would not undertake judicial review of such aprogramme.”
Defining the word ‘Sadbhavana’ the court said: “Sadbhavana, as the name denotes, is a programme launched by the state government for goodwill or in good faith.”
The court further said, “It appears that under the programme, the chief minister decided to visit different places all over the state and meet people at large.
As a part of the programme, the people of different regions within the state are being apprised of the work undertaken by the government according to their political manifesto and also to apprise the citizens as to what the state government intends to do in future for the welfare of the people.”
One Rajesh Mota had filed the PIL challenging Sadbhavana fasts on the ground that, the government had organised such fasts to get political gain and huge expenditure had been made on the events.The counsel for the petitioner, Ratna Vora, said: “We will challenge the verdict in the Supreme Court.”
Plea challenging NCTC to be posted before First Bench
The Madras High Court on Wednesday directed the Registry to post a public interest litigation petition (PIL) challenging the validity of the National Counter Terrorism Centre (Organisation, Functions, Powers and Duties) Order 2012, before the First Bench.
In the petition, filed through counsel Manikandan Vathan Chettiar, the petitioner Vijayalakshmi Shanmugam stated that the order was issued by the Union Home Secretary.
The petitioner said that no consultations were held with the stakeholders before passing the order.
The proposed organisation was stillborn.
It had no cadre of its own and proposed to borrow strength from existing entities.
The haste shown in fixing the date of March 1 and notifying the same, when no cadre had been raised made the decision a highly suspicious one.
Nine Chief Ministers had raised objections to the National Counter Terrorism Centre.
“Quash the order”
The petitioner prayed the court to call for the records and quash the impugned order as ultra vires the Constitution.
A Division Bench, comprising Justices Elipe Dharma Rao and N. Kirubakaran, directed the Registry to post the matter before the First Bench.
Dont cut or prune trees for parking facility: Bangalore HC
Published: Wednesday, Feb 22, 2012, 11:46 IST
By DNA Correspondent | Place: Bangalore
The high court has directed the state government not to cut or prune trees for constructing a multi-level car parking facility in the vacant space of the legislators’ home until the next hearing of a public interest litigation (PIL).
Ramesh Babu, in his PIL, had sought direction from the court to stop the work for the parking facility to save trees in the Cubbon Park from the axe.
Babu said that when he visited the premises of the legislators’ home in the second week of January, he found that several trees had been cut for the project. He said that the government wanted the parking facility to come up.
On August 6, 2010, the state government had filed an application in the high court for the construction of the multi-level parking facility in the vacant land around the legislators’ home. The court had then rejected the application to protect Cubbon Park’s green cover.
Despite this, the government started construction work there by cutting several trees in violation of the constitution, Babu said.
Cubbon Park is the city’s central lung space. The government is not applying its mind for the proper development of the city nor is it giving any importance to the maintenance of the eco system, the petitioner said.
A division bench headed by chief justice Vikramajit Sen, on Tuesday, directed the state government not to cut or prune trees in the vicinity of the legislators’ home for the construction of multi-level car parking facility.
The bench issued notices to the state government and directed it to file the counter affidavit within two weeks.
Give report in stray dogs case: HC
TNN | Feb 23, 2012, 04.25AM IST
MADURAI: The Madurai bench of the Madras high court has sought a status report from the authorities on a PIL seeking compensation for seven students bitten by stray dogs, inside a government school campus.
In the PIL, Anandharaj, an activist of Evidence NGO, sought a direction to the district authorities to construct a compound wall in Alanganallur Girls Higher secondary School and consequently to direct them to pay compensation to the girl students, who had taken treatment at the primary health centre for the dog bite.
According to the petitioner, on 23 January, when the school assembly session was on, the stray dogs, which had entered the school and were the fighting with each other. Seeing this, the scared students ran helter-skelter. In the melee, the dogs charged on the girls and bit them. The students sustained injuries and were taken to the primary health centre for treatment.
The petitioner said the government school is situated around five acres of area. As the school is not covered completely by a compound wall, stray dogs roam around in the said school, freely. Plastic wastes and garbage are being dumped near the school and people who are living in the adjacent area use the school as a thoroughfare even during school hours distracting the students.
When the matter came up for hearing before Justice Chitra Venkataraman and Justice R Karuppiah, the government advocate, who appeared on behalf of the Madurai district collector was directed to file a status report.
Don’t treat mentally-ill as lesser beings, stop bullying welfare institutions: HC to babus
Express News Service : New Delhi, Thu Feb 23 2012, 04:33 hrs
The Delhi High Court on Wednesday said mentally-challenged persons should not be treated as lesser human beings, and the bureaucracy cannot be allowed to have its way with social welfare projects.
Adjudicating a PIL over construction of half-way homes for mentally-challenged persons in the city, a bench headed by Acting Chief Justice A K Sikri said: “These persons are equal human beings and they must be treated on a par with others. We will do and make the government authorities do whatever is best for their interests. We will not let them be thrown out on the streets, but instead ensure that they get proper care and treatment.”
The court made these observations after Sreerupa Mitra Chaudhury, who runs a shelter for mentally-challenged persons in Kabir Basti, North Delhi, under the banner of ‘Sudinalay’, complained against the non-cooperative attitude of social welfare officials. Chaudhury said she would rather shut down the home and hand over the inmates to the authorities.
In response, the bench said the court would ensure that the inmates are taken care of. “Hold on to your patience. We will ensure that all the inmates are treated like human beings, and the bureaucracy does not have its way with projects of social welfare,” the bench said.
Earlier, an inspection report of the centre was submitted in court by the Social Welfare department. Highly critical of the shelter’s functioning, the report said: “Sudhinalaya is barely managing a shelter place for destitute and mentally-ill men and women. The services given to inmates, and the documentation, are below satisfaction… The inmates are living in a pathetic condition, without any recreational, counselling and rehabilitation facilities.”
The court, however, said that it would go through Chaudhary’s response to make sure that the adverse report was not part of the bureaucracy’s plan to “settle scores” with her.
During the hearing, the court was also informed by the state-run Delhi State Industrial and Infrastructure Development Corporation (DSIIDC) about plans to construct five half-way homes to provide social integration and rehabilitation facilities to mentally-challenged patients.
The court, however, expressed displeasure over the laxity of the DDA in responding to a query over relocating a power sub-station from one of the areas allotted for construction of half-way homes. If no response is received in this regard by the next date of hearing, its vice-chairman shall have to personally present himself in court, it added.
The court will take up the matter on March 14.
City Cong chief quits after court orders corruption probe
HT Correspondent, Hindustan Times
Mumbai, February 23, 2012
The Bombay High Court on Wednesday directed the Mumbai police to register a FIR against Mumbai Regional Congress Committee president Kripashankar Singh and his family members for possessing assets disproportionate to their known sources of income. Singh quit his post after the order.
Karnataka Lok Ayukta appointment: PIL withdrawn
Published: Wednesday, Feb 22, 2012, 11:48 IST
By DNA Correspondent | Place: Bangalore | Agency: DNA
A PIL filed in the high court seeking speedy appointment of the Lok Ayukta was referred to another bench, while another PIL on the same issue was withdrawn, on Tuesday.
The case came up for hearing before a division bench headed by chief justice Vikramajit Sen which referred it to another bench.
Siddanagouda C Patil of Belgaum filed the PIL, contending that the post of Lok Ayukta has been vacant for the last six months. Due to this, people are put to hardship. It is important to fill such an important post as soon as possible so that corruption can be looked into.Another PIL, on the same issue, was withdrawn after it came for the hearing. A Bangalore resident, Gajendra, had filed the PIL in January.
Mumbai Congress chief Kripashankar Singh quits as HC orders probe into assets
The court was hearing a PIL filed by activist Sanjay Tiwari, who alleged that the Congress MLA had amassed wealth disproportionate to his known sources of income. The court while keeping the PIL pending, has directed the police to file a compliance report on April 19.
“The commissioner of police shall obtain sanction from the government to prosecute Kripashankar Singh for criminal misconduct under the Prevention of Corruption Act,” a division bench of chief justice Mohit Shah and justice Roshan Dalvi said.
The bench said CP Arup Patnaik shall collect documentary evidence regarding all movable and immovable properties of Kripashankar and his family, including his wife, son and daughter-in-law, who will also be prosecuted for aiding the crime.
“…We do not want to pass any directions regarding the bank accounts of the respondents as it is alleged that the money might have been washed out. The PIL shall be treated as an FIR and the report submitted by the state anticorruption bureau in March 2011 showing Kripashankar’s income and expenditure shall be treated as investigation,” the court said.
Taxi, auto drivers being cheated by moneylenders, credit societies: PIL
Mohan K Korappath, Hindustan Times
Mumbai, February 23, 2012
The Mumbai Taximen Sangathan has filed a public interest litigation (PIL) in the Bombay high court (HC) seeking the implementation of the Hire-Purchase Act, 1972, and a notification to that effect by the central government.
According to the petition filed by the association and
SC asks Centre, states to give details on pending mercy pleas in three days
TNN | Feb 23, 2012, 02.05AM IST
NEW DELHI: The Supreme Court on Wednesday took exception to the delay in getting information relating to pending mercy pleas by condemned prisoners before the President and the governors and asked the Centre and states concerned to provide details about such pendency within three days.
Expressing anguish over the casual approach of the governments, a bench of Justices G S Singhvi and S J Mukhopadhyay said this was the final opportunity to the governments concerned and posted petitions on this issue for final hearing on March 1.
The court asked home secretaries concerned to supply required data to the office of the additional solicitor general in Supreme Court dealing with the case. The court also asked advocate Siddharth Dave, who appeared for the Centre, to bring all details about pending mercy pleas on the next date of hearing.
A petition by condemned prisoner Devender Pal Singh Bhullar about inordinate delay in consideration of his mercy plea by the President had persuaded the apex court to take note of the plight of similarly placed death row convicts who were living in jails with an uncertain future.
Bhullar, who was convicted for masterminding a bomb blast that killed nine people in Delhi, has been on death row since August 25, 2001. His mercy petition was pending with the President for eight years and was finally dismissed late last year.
Since January 2011, he has been undergoing treatment for depression at the Institute of Human Behaviour and Allied Sciences (IHBAS) for mental trauma and he had moved the apex court for clemency on the ground of delay.
Finding no reason for the Centre and states to inordinately delay decision on mercy petitions, the bench said, “We want to know from the date mercy petitions reach the competent authority, what is being done.”
There is no time limit to consider mercy petitions, but the delay by the government is viewed as a serious violation of right to life and liberty of condemned prisoners.
Ramlila crackdown: SC blames cops, pulls up Ramdev
Last Updated: Thursday, February 23, 2012, 15:38
New Delhi: In a significant development, the Supreme Court on Thursday held Baba Ramdev and Delhi Police guilty of negligence in connection with the midnight crackdown on yoga guru’s followers at the Ramlila Maidan on June 4-5 last year during his anti-corruption agitation.
The apex court, while stressing that the authorities could have avoided the violent incident, said that both Baba Ramdev and the police acted in an irresponsible manner.
“There was abuse of power by the Delhi Police and there was violation of fundamental rights of people,” the apex court bench of Justices BS Chauhan and Swatanter Kumar said.
“The incident shows might of the state which strikes at the foundation of democracy. It is a glaring example of trust deficit between people governing and people being governed,” the bench said.
The Supreme Court also directed the Delhi government and the Delhi Police Commissioner to register a case against officers who caused injury, and those who used lathicharge and tear gas in the crackdown.
The court further asked the authorities to give a compensation of Rs 5 lakh to the family members of Rajbala, the woman who died due to the injury suffered in the police crackdown.
Besides, the court also ordered a compensation of Rs 50,000 for those who sustained serious injuries and Rs 35,000 for those with minor injuries during the incident.
Importantly, the apex court asked the yoga guru to share 25% of the total compensation to be given to the victims.
Meanwhile, the family members of Rajbala have refused to take any compensation from the yoga guru’s trust, saying that he was not responsible for the unfortunate incident.
The apex court had taken suo motu cognisance of media reports purportedly showing brutality of police action against the sleeping followers of Ramdev, including women and children.
Ramdev had alleged the police action was carried out on the instructions of their political masters and demanded action against all people who had directed the mid-night crackdown.
Ramdev was agitating along with his followers against corruption and demanding that the UPA government must make sincere efforts to bring back black money illegally parked in secret foreign bank accounts by tax evaders.
Delhi Police, however, claimed Ramdev had instigated his followers to indulge in violence, forcing the police to act at that time of the night.
Court rejects NIA plea seeking suspect’s custody
Bhartesh Singh Thakur, Hindustan Times
Panchkula, February 22, 2012
In a setback to the National Investigation Agency (NIA), a Panchkula court on Wednesday rejected its application seeking 15-day remand for Samjhauta train bombing suspect Lokesh Sharma.
The February 2007 train blasts close to Diwana railway station near Haryana’s Panipat town killed
Statement not recorded
The NIA is yet to record the statement of Kamal Chauhan, whose remand ends on February 24. The investigating agency is likely to seek to interrogate him further. His house had been searched and some material reportedly seized by NIA.
Court orders trial in illegal tele exchange case
Last Updated: Wednesday, February 22, 2012, 15:55
New Delhi: A Delhi court has ordered trial of a man for allegedly running an illegal telephone exchange to mask international calls as local ones and causing loss of over Rs two crore to the public exchequer.
Additional Sessions Judge (ASJ) Narinder Kumar upheld the magisterial court’s order on framing of charges against Naveen Grover for cheating and violating provisions of the Indian Telegraph Act on maintaining and using unauthorized telegraphs.
“From the material available on record, prima facie it appears that by receiving and switching international calls on the lines obtained from the complainant and others (service providers), Grover used to run a telegraph, otherwise, than as permitted by law. Therefore, prima facie he made himself liable for offences punishable under the act,” the ASJ said.
The FIR against Grover was lodged in 2004 on a complaint by Videsh Sanchar Nigam Ltd (VSNL) vigilance manager to the Special Cell of Delhi Police.
VSNL was renamed as Tata Communications Ltd after Tata Group acquired a controlling stake in it from the government in February 2008.
A separate vigilance report by the Department of Telecommunications (DoT) had stated that Grover had caused a total loss of Rs 2.13 crore to the exchequer.
The magisterail court had framed charges against Grover and put him on trial in October 2009 but the same had been challenged by Grover in the sessions court.
Grover had argued that no charges of cheating or breach of the Indian Telegraph Act was made out against him.
The prosecution, however, defended the charges levelled against him. Moreover, it said, another section of the Act dealing with ‘intentionally damaging or tampering with telegraphs’ is also attracted against Grover.
On prosecutor’s allegation that Grover also damaged and tampered with telegraphs, the sessions court said the additional charge of violating Section 25 of Indian Telegraph Act by tampering with telegraphs, could be added by the trial court on a plea by the police.
“Having regard to provision of Section 216 CrPC (court’s power to alter charges) state shall be at liberty to make application and trial court shall also be at liberty to consider such prayer for alteration of charge so as to add provisions of Section 25 of Indian Telegraph Act,” the ASJ said.
The sessions court, however, held that no case of ‘breach of condition of (telegraph) license’ is made out against Grover as he used to run telegraph without any permission.
The court also directed Grover to appear before the magistrate court to face trial.
The trial court had held that prima facie it appeared that Grover was running an illegal telephone exchange at his premises in Delhi and Gurgaon.
Grover ran his business in the name of ACE Polyvaricon Electronics Pvt Ltd and applied for telephone connections from various service providers including Reliance, Dishnet, DSL, MTNL and BSNL without disclosing that the connections could be used for the purpose of running illegal telephone exchanges, the magistrate had said.
There have been several cases across the country, of ‘masking’ of international calls as local ones to avoid paying revenue to the government.
In few of these cases, top officials of several telecom companies have also been booked.
Lawyer alleges harassment by Traffic Police
Express News Service : Chandigarh, Thu Feb 23 2012, 05:19 hrs
An advocate in the District and Sessions Court has lodged a complaint with the Police and the Administration regarding harassment at the hands of the Traffic Police as they were allegedly sending traffic violation slips in his wife’s name without a reason.
According to complainant Ajay Sood, he had lodged a complaint against three police personnel: constable Kaptan Singh, Sub-Inspector Gurdev Singh and DSP Jagbir Singh in the Police Complaints Authority (PCA).
The PCA had passed an order on December 2, 2011, where it made a recommendation for suspending and departmental action against Kaptan Singh and Gurdev Singh. The Authority had also recommended disciplinary action against DSP Jagbir Singh.
In his complaint, Sood had written that his wife Babita Sood had received a traffic violation slip few days ago in which she was shown to be driving a car without wearing a seatbelt on June 14, 2011. He has further said that he and his wife do not own any car by that number and own an Activa scooter. He further mentioned that even if the the police had erred in writing down the number of his wife’s scooter, the challan had been done for a wrong traffic violation (not wearing a seatbelt).
He further stated that the car was registered in the name of a Sector 41 resident who he or his family members were not associated in any professional or social way, “Even if Babita was driving the car, the challan should have come to the address of the vehicle owner and not to his house.”
He has requested the authorities to investigate the matter and wants appropriate action to be taken against the erring police officials who were trying to harass his family.
DSP (Traffic) Vijay Kumar, who was out of the city, said , “I am not aware of the complaint, but appropriate action will be taken if anyone is found guilty.”
Justice Katju’s latest: He wants Maharashtra govt dismissed
Express news service : New Delhi, Thu Feb 23 2012, 03:11 hrs
Press Council of India Chairman Markandey Katju today sent a show cause notice to the Maharashtra government warning it of dismissal for “failing to uphold the Constitution”.
The provocation was attacks on 800 journalists over 10 years in the state, including the “most shocking” murder of J Dey.
In a letter to Chief Minister Prithviraj Chavan, Katju said his two previous letters had gone unanswered. “…Why I should not recommend to the President to dismiss your State Government under Article 356 of the Constitution…,” Katju asked.
The former Supreme Court judge gave the CM three weeks to respond, failing which he “will take such action as is fit”.
“The Maharashtra government has failed in upholding the Constitution as it has failed to uphold the freedom of the press,” Katju said. “…It seems to me that your government is neither able to maintain law and order nor prevent attacks on journalists.”
Katju told The Indian Express he had sent the first letter to Chavan over a month ago. “I sent the third letter today after… eight journalists from Maharashtra made a representation to me.”
A Maharashtra subcommittee is reported to have concluded recently that there is no need for a law to protect journalists. But Chief Minister Chavan is yet to take a final decision.
The CM was in Nashik on Wednesday and could not be reached for his response.
Saif Ali Khan says he was assaulted by nose he broke
Published: Thursday, Feb 23, 2012, 9:45 IST | Updated: Thursday, Feb 23, 2012, 10:00 IST
By Somendra Sharma | Place: Mumbai | Agency: DNA
Saif Ali Khan was embroiled in a controversy after Iqbal Sharma, an NRI from South Africa, alleged that the actor assaulted him during an altercation at Wasabi, a Japanese restaurant at the Taj Mahal Palace in Colaba, around 12.30am on Wednesday. The police on Wednesday evening arrested Saif and two others — Bilal Amrohi and Shakeel Ladak — in connection with the incident, but immediately granted bail to the trio for Rs15,000 each.
“I am a law-abiding citizen. All allegations against me are false and justice will be done,” Saif told a bevy of onlookers while leaving the Colaba police station. He was accompanied by his lawyer Mohan Jaikar.
The police failed to trace Saif or establish contact with him despite visiting his residence and offices in Bandra, Juhu and Khar on Wednesday afternoon. Saif, who was in an office in Raheja Towers at Nariman Point, reached the police station around 8pm in a black SUV.
Sharma said the incident occurred when Saif accompanied by girlfriend Kareena Kapoor, her sister Karisma Kapoor, Malaika Arora-Khan, Amrita Arora and others, was having dinner at Wasabi.
“Sharma and his family were seated close to the table where Saif and 10 of his friends were having dinner. Saif’s group was making a lot of noise and therefore, Sharma requested them to lower their voice. This led to a heated argument and a scuffle between Saif and Sharma,” said Iqbal Shaikh, assistant police commissioner, Colaba division.
“Saif and two others from his group then bashed up Sharma, resulting in the Johannesburg businessman suffering a nasal bone fracture,” Shaikh said.
The police said Sharma was very upset with the incident. “He consulted his friends and first went to GT hospital. He then came with his medical report and lodged a complaint against Saif and two others,” senior inspector Vinod Sawant said.
“Since Sharma is an NRI, we asked him whether he wanted to pursue the case as he will have to be present for further legal procedures. He said he will fight till the end,” Sawant said. “He told us that he would also come to court for the proceedings. The punishment according to section 325 (Punishment for voluntarily causing grievous hurt) of the Indian Penal Code is maximum seven years imprisonment or fine. The trial can take place in a magistrate court.”
Lawyer Mahesh Vaswani, who represented Amrohi and Ladak, said: “He (Sharma), hurled abuses first and initiated the fight. He also used bad language against the girls in the group. My clients never assaulted him.”
The incident involving an actor came weeks after Shah Rukh Khan slapped director Shirsh Kunder last month.
AFT staff seek pay arrears, work
UDUCHERRY: Workers of the Anglo-French Textile (AFT) mills gathered on the factory premises on Tuesday, seeking salary arrears and reopening of the mill at the earliest. Owing to severe funds crunch, the employees have been on ‘leave with salary’ for the past 51 days. At present, only the tailoring unit and the showroom of the factory are open.
Led by AIADMK MLA A Baskar, the workers met AFT’s joint managing director S D Sundaresan and other top officials to press for their demands.
The AIADMK leader urged the mill officials to take steps to immediately renovate the infrastructure of the mill and resume production in its three units.
The MLA also urged them to disburse the salary arrears.
According to a source in the factory management, the employees would be given the salary arrears for a month, on Wednesday.
The staff were earlier given the salary arrears on December 29, a day before cyclone Thane struck, causing widespread destruction to the factory premises and other infrastructure.
At present, the factory employs 1,962 persons including all the officials, staff and workers in its three units.
A sum of Rs 3.7 crore is needed to meet the salary requirement of a month.
Gujarat riots: Rahul Sharma to file reply to charge sheet till March 1
Published: Wednesday, Feb 22, 2012, 17:19 IST
By DNA Correspondent | Place: Ahmedabad | Agency: DNA
IPS officer Rahul Sharma, on Tuesday, got time till March 1 to file a reply in response to the charge sheet issued to him for not handing over controversial mobile call data CDs that became instrumental to nab many riot accused in the state, including former minister Maya Kodnani and former VHP leader Jaideep Patel.
The government agreed to grant more time to the IPS officer during hearing before the Central Administrative Tribunal (CAT), where he challenged the charge sheet issued by the state government last year. The CAT has posted the hearing for March 1.
Sharma’s counsel Mukul Sinha and KG Pillai tendered long arguments on the line that the officer was being victimised for deposing before the Nanavati Commission probing the 2002 communal riot cases. They further said he should have full immunity under section 6 of the Commissions of Inquiry Act, 1952 from all civil and criminal proceedings except for perjury.
Meanwhile, government counsel Bhaskar Tanna sought time from CAT bench of Ashok Kumar and Chameli Majumdar to refer to some more documents before making final submissions on admission of Sharma’s petition.
However, Sinha submitted before the CAT that Sharma’s deadline to file reply is ending today and it should be extended as the state has sought time and it can take any action against the officer. Tanna agreed to this after consulting home department officials present in the court room.
The government has issued charge sheet to the officer for not handing over original CDs to investigating officials who are probing the Naroda Patia, Gulbarg Society and other riot cases. Sharma has though claimed that he had sent the CDs in question through a police messenger to the then JCP PP Pande after which the CDs became untraceable.
HC notice to CBI on Balwa’s plea
Last Updated: Wednesday, February 22, 2012, 23:08
New Delhi: The Delhi High Court on Wednesday sought the CBI’s response to plea by Swan Telecom Promoter Shahid Usman Balwa seeking quashing of charges against him in the 2G A bench of Justice M L Mehta issued notice to the CBI and sought its reply by March 13, the next date of hearing.
Balwa, out on bail now, has moved the high court for quashing of the charges framed against him by Special CBI Judge O P Saini.
“There is no circumstantial evidence of conspiracy, to be proved either directly or indirectly against the petitioner, and thus, the alleged accused could not be held responsible even for the offences of criminal conspiracy punishable under section 120 B of IPC,” Balwa said in its petition.
“There is no evidence on record to prove these facts that the accused had obtained for himself or for any other person any valuable things or pecuniary advantage,” it added.
The trial court had framed charges against Balwa under various provisions of the IPC, including the criminal conspiracy, cheating and forgery, besides various other offences under Prevention of Corruption Act.
Pay Rs 25 lakh to leave port, HC tells Italian crew
New Delhi: The Kerala High Court on Wednesday said that the Italian ship Enrica Lexie, whose crew members had killed two Indian fishermen near Kochi port, could leave Kochi after paying Rs 25 lakh. The court maintained that the ship could not leave the port without paying the guarantee.
The High Court further said that the ship could leave only after getting a clearance from the probing agencies.
Wife of one of the fishermen who were killed by the Italian guards had moved the Kerala High Court demanding that the ship should not be allowed to leave without paying the compensation.
Meanwhile, according to sources, Italy has demanded a joint probe into the killing of the fishermen, reiterating that the incident occurred in international waters.
The demand was made by the Italian Consul General in a meeting with Kerala Director General of Police (DGP) Jacob Punnose. The Italian envoy requested Punnose for adequate facilities to be made for the accused in the jail.
Punnose responded by saying that the points could be mentioned in the court, following which the court would take a decision, said sources.
This came even as a five-member Italian delegation, led by deputy foreign minister Staffan De Mistura, met Home Ministry officials in Delhi to secure the release of the two naval officers.
The Italian Deputy Foreign Minister said that his country “wants to isolate the firing incident from wider bilateral relations”.
He is now slated to meet Kerala Chief Minister Oommen Chandy and the families of the victims to personally express his regret over the incident. A high level meeting is also expected between him, Chandy, DGP Punnose and other top officials at Kottayam on Wednesday night at 10.30 pm.
Italian Foreign Minister Giulio Terzi, who himself will visit the country on February 29, has instructed De Mistura to continue, at the political level, the work already carried out by the delegation of Italian experts from the Foreign, Defence and Justice Ministries.
After the meeting, the Italian Deputy Foreign Minister said that the situation needed to be analysed. “This tragic incident needs to be analysed. A proper dialogue was needed to have a proper solution to this,” De Mistura said.
He also said that it was important to find out the exact location of the incident. “We do sadly recognise that two Indian citizens died. The incident happened in international waters, but the exact location needs to be found out. We all want the truth to come out,” De Mistura said.
However, India remained firm and said that law would follow its course. Minister of State, Ministry of External Affairs Preneet Kaur said, “Both sides have a different interpretation of the law, we will go by our law.”
“We assured them that our judiciary is free and it will take a right decision,” she added.
Italy wants the two accused to be investigated by Italian authorities in their country.
India has said that there is no diplomatic immunity for the accused and they must be tried in an Indian court. Kerala Chief Minister Oommen Chandy reiterated that the case came under the state government’s jurisdiction and that the government was very serious about the probe.
Chandy said his government would ensure that the guilty “are brought to book”.
He said, “Police is seriously questioning the culprit. We will continue to take all actions under the IPC.”
“There is a lot of concern about the safety of fishermen… will not let the guilty escape from here,” said Chandy.
MP dumper scam: HC asks for records
Express news service : Bhopal, Thu Feb 23 2012, 04:37 hrs
The alleged dumper scam on Wednesday returned to haunt Shivraj Singh Chouhan when the Madhya Pradesh High Court called for records from a Special Court that had given a clean chit to the Chief Minister in the case of alleged corruption.
The Bhopal-based Special Court had on August 11, 2011 accepted the closure report filed by the Lokayukta Police, which said no case of corruption could be made against Chouhan for misuse of office.
In a criminal revision before the HC’s Jabalpur-based principal bench, petitioner Ramesh Sahu challenged the Special Court’s decision to accept the closure report.
When the 29-page criminal revision came up before a division bench on Wednesday, the petitioner said he had not been provided annexure that were part of the probe report, and requested the court to call for records and the case diary for reference.
Additional Advocate General Naman Nagarath said the court accepted the plea that the records were needed for reference before arguments could commence or notices could be issued.
The bench of justices Rakesh Saxena and M A Siddique said the matter be listed immediately after the documents were received.
Taking cognizance of a private complaint filed by Sahu in 2007, the Special Court had ordered the Lokayukta’s Special Police Establishment to probe the allegation and submit a report to it.
Sahu had alleged that a private industrial group had favoured Chouhan and his wife Sadhna Singh in exchange of a mining lease he allotted to it.
Italian authorities move Kerala HC to quash FIR
Last Updated: Wednesday, February 22, 2012, 17:30
Kochi: Questioning the jurisdiction of Indian courts and police, the Italian government and two naval guards of an oil tanker on Wednesday moved the Kerala High Court seeking quashing of the FIR charging the marines with murder of two fishermen while firing from the ship off the state coast.
As the diplomatic row between the countries continued since the February 15 incident, Italian Consul General in Mumbai Gian Paolo Cutillo and the two accused – Latore Massimiliano and Salvatore Girone – filed the petition seeking to quash the FIR registered by Kollam police in Kerala.
The petitioners submitted that Kerala Police have no authority to conduct investigation in the case and courts in India have no jurisdiction as the incident occurred beyond its territorial waters.
The marines, suspected to have shot dead the fishermen, took the legal recourse two days after they were arrested by the state police capping four days of hectic negotiations between Indian and Italian officials on the issue of submitting them to Indian authorities.
Italy has been maintaining that the incident occurred outside Indian territorial waters and the marine’s action was taken assuming the fishing vessel to be carrying pirates.
In a related development, the court admitted a petition by the family of one of the deceased fishermen seeking Rs 1 crore compensation and directed the owners of Italian vessel Enrica Lexie to furnish a bank guarantee of Rs 25 lakh.
Justice Harun-UL-Rasheed admitted the petition by Doramma Valentine, wife of Valentine alias Jelstine (45), and issued notices to the ship owners, accused, and Cochin Port authorities.
The high court directed the port authorities to ensure that the ship is arrested in the port till the bank guarantee was furnished.
Valentine’s counsel insisted on a bank guarantee for Rs 1 crore but the court turned it down and limited it to Rs 25 lakh. He complained that the in the eyes of the ship owners, Indian citizen will not have much value.
The petitioner, who sought the compensation from the ship’s owners, captain and the two marines, had submitted she did not have Rs 8, 18,400 to pay as court fees required under section 22 of the Kerala Court Fee and Suit Valuation Act and should be declared as pauper.
The shipping company objected to the petitioner’s plea to waive the stamp duty after declaring them as pauper. Valentine also filed an application seeking exemption from appearing in the court to present the petition.
The petitioner’s counsel informed the court that the last rites of her husband were underway and the family was in a state of shock and was not in a position to appear today.
The ship owners’ counsel contended that they had to pay Rs 30 lakh per day for three days as demurrage charges to the port. The vessel is berthed in the outer port area with Coastguard and Police keeping a close watch.
HC summons trial court records on Yahoo’s plea
Last Updated: Wednesday, February 22, 2012, 22:36
New Delhi: The Delhi High Court today allowed internet portal Yahoo India’s plea for calling of the records of the trial court which has summoned it for allegedly hosting objectionable content.
A bench of Justice Suresh Kait directed the registry to produce the records of the trial court. The matter is listed for hearing in the high court on March 1.
“Registry of this court is directed to produce the records of the case in sealed cover,” Justice Kait said.
Senior advocate Arvind Nigam, appearing for the website said no prejudice would be caused to any party as the matter is listed before the trial court on March 13.
Yahoo India has moved the high court challenging a lower court order summoning it for allegedly hosting objectionable content on its web pages. The high court, however, has refused to stay the criminal proceedings against Yahoo India.
Yahoo India had said the complaint and the order of the magistrate dealt with alleged objectionable material retrieved from various websites including Zombie, Orkut, Youtube, Facebook, Blogspot and none of them pertained to Yahoo.
The magisterial court had on December 23 issued summons to 21 websites for allegedly committing offences of criminal conspiracy, sale of obscene books and objects to young people.
The Centre had earlier filed a report before the lower court saying, there was sufficient material to proceed against the 21 websites for alleged offences of promoting enmity between classes and causing prejudice to national integrity.
Out of the 21 websites, Google India and Facebook India had also moved the high court against the magistrate’s order, saying the summons be quashed as they did not commit any offence.
Arya orphanage case: HC orders in-camera hearing
TNN | Feb 23, 2012, 02.57AM IST
NEW DELHI: Informing the Delhi high court that Arya Anathalaya doesn’t have adequate residential accommodation for children, the administrator of the orphanage recommended that further admissions be put on hold.
Submitting a report outlining the progress of the probe into the alleged sexual assault and harassment of children, the administrator P P Dhal said he has banned the entry of the three accused into the orphanage and ordered installation of CCTV cameras. After going through the report, a division bench of Acting Chief Justice A K Sikri and Justice Rajiv Sahai Endlaw decided to conduct in-camera hearings from Thursday. “Some stray incidents shouldn’t result in other children living under fear. We have to look for a solution. Our order should not have adverse impact on the psychology of the children who will appear for their examinations soon,” the bench observed while refusing to stop the city government from setting up any other committee to inquire into the matter.
In his report, the administrator said, “It has been felt that the orphanage does not have a proficiently qualified officer-in-charge and counsellors. In a plea to HC, the orphanage argued that the government should be restrained from setting up any other panel. Orphanage president V P Chaudhary said more than 1,600 children have been staying at the 95-year-old home and the whole organization cannot be blacklisted on the basis of stray incidents.
The court said that no other committee has been set up so far and asked Chaudhary to approach the court if he has objections to any other panel set up by the government. HC took cognisance of the matter by way of an email received by Justice Sikri. The email alleged that children were subjected to sexual abuse and other sufferings at the orphanage. The court had then sought a report from the administrator. The Delhi government had appointed an administrator on February 13 after several TOI reports alleged sexual exploitation of children.
Chaudhary said that all allegations against the children’s home were baseless and it had no objection even if the court appointed a judicial officer to conduct an inquiry . During the last hearing, HC indicated it will look into the larger prospect of the issue, including of running NGOs without registering under the relevant laws.
Privacy doesn’t confer right on consenting adults to do illegal act’
High Court verdict erroneous, argues Delhi child rights panel
The Delhi High Court judgment, declaring ultra vires Section 377 of the Indian Penal Code relating to unnatural sex between two consenting adults and holding that it is violative of the right to privacy, is clearly erroneous, Amarendra Saran argued in the Supreme Court on Wednesday.
Making his submissions before a Bench of Justices G.S. Singhvi and S.J. Mukhopadaya, the senior counsel appearing for the Delhi Commission for Protection of Child Rights, said the right to privacy did not confer any right on consenting adults to commit an act which was illegal. It “does not confer any immunity to crimes committed by consenting adults in private.”
Counsel noted that the High Court, while reading down Section 377 had held that it was constitutional morality alone that could pass the test of compelling state interest and public morality had no role to play. But “public morality has been a very important consideration in framing a law as is evident from the provisions contained in Articles 19, 25 and 26.”
The Bench intervened and wanted to know from counsel whether there was any data to show that Section 377 of the IPC had actually been used to harass the gay community and whether the risk of HIV/AIDS was higher among those people. Mr. Saran said the community had a higher risk of contracting HIV/AIDS and that was all the more reason to ban such behaviour.
The Bench asked counsel: “How many cases have been registered under Section 377 after 1947? Has it been enough to prove harassment?”
The Commission opposed the High Court decision on the ground that this provision, which had stood the test of time for about 150 years, was required to check exploitation of children. Mr. Saran told the court: “Tomorrow dowry-seekers can say that they are being discriminated [against] by non-dowry seekers. Can they be allowed to challenge the validity of Section 304 B IPC (dealing with dowry deaths)?”
Justice Singhvi asked counsel “whether there was data to back its [commission's] claims. Is there any scientific study to show this? Has the government or the National Aids Control Organisation done anything on this?”
Additional Solicitor-General P.P. Malhotra, appearing for the Centre, said several studies had been conducted and there was enough data.
Justice Mukhopadhyay wondered how the gay community could come under the sweep of the Section when it did not make carnal intercourse per se an offence.
Justice Singhvi said a member of the younger generation might want to run naked on the street. That could be a natural right “but is it a fundamental right? In such cases what happens to the right of dignity of others, or the right of privacy? What about exchange of wives?” the judge asked and said the court must envisage all these scenarios.
Decision on Sec 377 could affect other sexual offences in IPC: SC
TNN | Feb 23, 2012, 02.30AM IST
NEW DELHI: The Supreme Court on Wednesday said its final decision on the correctness of the Delhi High Court judgment — which decriminalized Section 377 of Indian Penal Code covering a sexual act in private between consenting adults — could have far reaching impact on several sexual offences listed in the penal laws.
A bench of Justices G S Singhvi and S J Mukhopadhaya requested the counsel for parties to keep in mind the evolving social ethos as the key words in the HC judgment — “consenting adults committing a sexual act in private” – could have a bearing on several other sexual offences enumerated in the IPC.
“Though the focus of our judgment would remain on Section 377, but keep in mind that it could have bearing on provisions relating to other sexual offences. Obscenity could be one such provision,” the bench told senior advocate Amarendra Saran, who was arguing against the HC verdict on behalf of Delhi Commission for Protection of Child Rights (DCPCR).
The court was possibly hinting at offences like adultery and obscenity in public, mostly misused by police to harass couples in parks.
Section 497 defines adultery. According to it – “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, and shall be punished with imprisonment of either description for a term which may extend to five years, or with fine, or with both. In such case the wife shall not be punishable as an abettor.”
In this case, the consent of the woman is immaterial and the consenting sexual act still would constitute an offence if the consent of her husband was not taken.
Saran said NGOs had challenged the legality of Section 377 before the HC on the ground that it targeted homosexuals as a class and hence violated the LGBT (lesbian, gay, bisexual, transgender) group’s right to equality guaranteed under Article 14, right to privacy under Article 21 and the constitutional guarantee under Article 15 prohibiting discrimination on the basis of sexual orientation of such persons.
He argued that right to privacy did not confer right on consenting adults to commit an act in private which was illegal. “In other words, right to privacy does not confer immunity to crimes committed by consenting adults in private. Hence, the reasoning of the HC that Section 377 is violative of right to privacy is clearly erroneous,” Saran said.
He said Section 377 did not suffer from class bias. “It applies uniformly to any man or woman if such person indulged in carnal intercourse which is against the order of nature,” he said and cited a 1990 Supreme Court judgment to back his argument that all “non penile-vaginal” intercourse would fall within the meaning of “carnal intercourse against the order of nature”, which has been classified as an offence under Section 377.
The DCPCR counsel said “there was a vast cultural difference in the Indian society and other societies of the world” and faulted the Delhi HC judgment for basing its reasoning on foreign court rulings.
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