Bombay HC dismisses petition seeking to exempt lawyers from lockdown restrictions

Source: Hindustan Times dated 16.07.2020

Link to the article: https://www.hindustantimes.com/india-news/bombay-hc-dismisses-petition-seeking-to-exempt-lawyers-from-lockdown-restrictions/story-6shmff7VwJrSjCAgwcDD5I.html

-- Kanchan Chaudhary

Shaikh had filed the petition after Mumbai Traffic Police had stopped him recently, when he was on his way to Mumbai city civil and sessions court on his two-wheeler and imposed a fine of Rs 500 for flouting lockdown restrictions.

The Bombay high court (HC) last Friday dismissed a petition seeking exemption for lawyers and their staff during the nationwide lockdown restrictions, which were enforced from March 25 to contain the spread of the raging coronavirus disease (Covid19) outbreak, and also refused to buy into the argument that they are essential service providers like other frontline workers battling the pandemic.

“In our considered view, no mandatory directions can be issued to the state legislature to include the legal services rendered by the advocates into essential services (as contemplated under Maharashtra Essential Services Maintenance Act, 2017),” said a two-member HC bench, comprising Justices SS Shinde and Madhav Jamdar, while rejecting the petition filed by advocate Imran Mohammed Salar Shaikh.

He had moved the HC, through advocate Kareem Pathan, seeking a direction to Maharashtra government to include services rendered by lawyers as an essential one and exempt them and their staff from the prevailing lockdown restrictions.

Shaikh had filed the petition after Mumbai Traffic Police had stopped him recently, when he was on his way to Mumbai city civil and sessions court on his two-wheeler and imposed a fine of Rs 500 for flouting lockdown restrictions.

Advocate Pathan argued that lawyers across the country were attending courts even during the lockdown, and consequently directions to the state government were necessary to exempt lawyers and their staff from lockdown restrictions by including their services as an essential one.

He also prayed before the court to waive off the fine imposed on the petitioner by Mumbai Traffic Police.

The HC, however, expressed its inability to entertain the petition and issue directions to the state government as prayed for.

The bench said, “It is within the exclusive domain of the state legislature to legislate as to which services to be included in the essential services, keeping in view the paramount interest of the community.”

The bench has, however, allowed the petitioner to file a comprehensive representation to the state government raising the issues put forth in the petition.

It has clarified that the dismissal of the petition shall not be construed by the government as an impediment in deciding the representation filed by the petitioner.

Chhattisgarh chief justice gifts cheque to Tamil Nadu lawyer went back to weaving baskets amidst Covid-19 crisis

Source: Times of India dated 15.07.2020

-- Nisreen Naaz

Link to the article: https://timesofindia.indiatimes.com/city/raipur/chhattisgarh-chief-justice-gifts-cheque-to-tamil-nadu-lawyer-who-went-back-to-weaving-baskets-amidst-corona-crisis/articleshow/76961805.cms

India’s first ever E-Lok Adalat opens in Chhattisgarh

Source: https://www.indialegallive.com/top-news-of-the-day/news/indias-first-ever-e-lok-adalat-opens-in-chhattisgarh on 13.07.2020

The Chhattisgarh High Court and the State Legal Services Authority organized the country’s first ever E-Lok Adalat on Saturday (July 11), amid the restricted judicial functioning owing to Covid-19 outbreak.

The session was inaugurated by the Chief Justice of Chhattisgarh High Court, Justice P R Ramachandra Menon.

The E-Lok Adalat is cited as the first such attempt in the country.

About 195 benches were constituted at different places of the state, including remote areas like Sarguja, Kanker, Bastar, Surajpur etc., via video conferencing and 3,135 cases were identified for compromise. In all 2,270 cases were settled in a single day through virtual mode.

Special Update on the Birth Centenary of Honourable Shri Justice Y.V. Chandrachud - Former Judge Bombay High Court - Former Chief Justice of India

Source: Whatsapp Post by M & J Services, a eclectic Law books Store dated 12.07.2020
              Special thanks to the Bombay High Court E-Library

A humble tribute to the memory of Honourable Shri Justice Y V Chandrachud on his birth centenary 12 July 2020
https://tinyurl.com/y75ozwrf
Source: Bombay High Court - eLibrary
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Shri Y.V. Chandrachud as the Government Pleader in the case of State v. K.M. Nanavati scanned copy of original judgment
https://tinyurl.com/y7m6twfy
Source: Bombay High Court - eLibrary
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Scanned copies of Original Judgments delivered by Hon’ble Shri Justice
Y.V. Chandrachud at Bombay High Court between 1961 and 1972
https://tinyurl.com/ybyhn9kv
Source: Bombay High Court - eLibrary
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Group photo of the Honourable Judges in 1962 the centenary year of the Bombay High Court
https://tinyurl.com/y8fz246r
Source: Bombay High Court - eLibrary
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Farewell function given by Bombay Bar Association to Honourable Shri Justice
Y.V. Chandrachud on his elevation as Judge, Supreme Court of India
https://tinyurl.com/y9bx2bfx
Source: Bombay High Court - eLibrary
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Honourable Shri Justice Y.V. Chandrachud’s speech at Panaji, Goa on 5 December 1987 during the 125 Years Celebrations of the Bombay High Court
https://tinyurl.com/y89jpzu3
Source: Bombay High Court - eLibrary
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Full Court Reference held at the Bombay High Court on 23 July 2008
https://tinyurl.com/ya3re3g7
Source: Bombay High Court - eLibrary

SC to consider social media bar as bail rule

Source: Hindustan Times dated 12.07.2020

-- Murali Krishnan

Link to the article: https://www.hindustantimes.com/india-news/sc-to-consider-social-media-bar-as-bail-rule/story-eYTMgGV4BglqvEsfJifTAO.html

UP police had filed an FIR against Choudhary on April 11 for various offences under various sections of the Indian Penal Code (IPC), including sedition (section 124A) and promoting enmity between religious groups (section 153-A), and Disaster Management Act.

The Supreme Court on Friday agreed to examine whether prohibition on use of social media can be prescribed as a pre-condition for granting bail.

A three-judge bench headed by Chief Justice SA Bobde issued a notice to Uttar Pradesh government while refusing to interfere with an order passed by the Allahabad high court on May 20 which granted bail to Congress leader Sachin Choudhary on the condition that he will not use social media. “What is wrong with an order asking you not to use social media? We don’t think it’s too onerous if a person’s participation on social media creates mischief. Why can’t the court say you don’t use the instrument which was used to cause mischief,” the bench remarked.

UP police had filed an FIR against Choudhary on April 11 for various offences under various sections of the Indian Penal Code (IPC), including sedition (section 124A) and promoting enmity between religious groups (section 153-A), and Disaster Management Act. The case was registered in connection with a press conference allegedly held by Choudhary in April questioning chief minister Yogi Adityanath’s handling of the pandemic.

The Allahabad high court released him on bail while setting a slew of conditions.

In his plea filed through advocate Keshav Ranjan, Choudhary maintained that he had only given a statement to media when they approached him. Choudhary also contested imposition of restrictions on use of social media as a condition for bail submitting that it is violative of freedom of speech under Article 19 of Constitution. The SC bench said that it will lay down a law regarding whether restrictions on social media can be imposed while granting bail.

Supreme Court gives nod for summons and legal notices to be sent via digital platforms

Source: Times Now News

-- Abhimanyu Sharma
Link to this article: https://www.timesnownews.com/india/article/supreme-court-gives-nod-for-summons-and-legal-notices-to-be-sent-via-digital-platforms/619557

This order marks as a huge step towards digitisation of Indian legal proceedings, where notices and summons used to be sent either by mail or delivered in person.

KEY HIGHLIGHTS:

• Summons, notices can be sent via WhatsApp, Telegram, Email, fax
• Two blue ticks on WhatsApp to signify receipt of legal notice, summons
• Notice may be served by email, fax if WhatsApp user disables blue tick feature

In a move which will revolutionise the legal system in India, the Supreme Court has allowed serving of summons and legal notices through WhatsApp, Telegram and Email. The top court has held that two blue ticks on a legal notice or summon sent via WhatsApp would legally demonstrate under the Indian Evidence Act that the intended recipient has seen the document.

This order marks as a huge step towards digitisation of Indian legal proceedings, where notices and summons used to be sent either by mail or delivered in person. Incidentally, this order comes less than 6 months after the top court had allowed court hearings via videoconferencing across the country in view of the COVID-19 pandemic.

Attorney General KK Venugopal and Solicitor General Tushar Mehta had expressed reservations on serving summons via WhatsApp since it is a fully encrypted platform, and the two-tick feature can easily be disabled by the user.

CJI also observed that WhatsApp allows users to turn off the blue tick feature, which will not give a conclusive proof of the document being seen. To allay these concerns, the apex court also allowed the use of Email or Fax to serve the summons and left it for the case to case consideration if notices have been properly served or not.

The CJI led bench was hearing a suo moto case on the extension of limitation in cases due to lockdown and passed these orders in view of lockdown related constraints where travel to post offices, courts and banks is not always possible.

First woman moves Supreme Court over triple talaq law

Source: Hindustan Times dated 09.07.2020

-- Abraham Thomas
Link to the article: https://www.hindustantimes.com/india-news/1st-woman-moves-sc-over-triple-talaq-law/story-GDNz12PC0SSXEXNrNZWm0O.html

The law was passed in July 2019 after intense debates in both the lower and upper houses of the Parliament, with opposition parties stating that the law targeted the Muslim community even as the centre asserted that the law would help achieve gender justice for Muslim women.

A Kerala lawyer has moved the Supreme Court against a law that criminalises the practice of granting instant divorce becoming the first Muslim woman to do so since Parliament passed the legislation in 2019.

Noorbeena Rasheed on July 6 challenged the Protection of Rights on Marriage Act, which provides for a three-year punishment for talaq-e-biddat, a practise also referred to as Triple Talaq, which is practised among a small section of Muslims in the country. “The protection of women cannot be achieved by incarceration of husbands,” her petition stated.

Issuing a notice to the Centre, a bench of three justices led by N V Ramana on Monday admitted Rasheed’s petition, which will be heard with nine similar pleas challenging the law’s validity. The other petitioners include organisations like Jamiat Ulama-i-Hind, All India Muslim Personal Law Board, Muslim Advocates Association, and two individuals. The petitions have called the law disproportionate as well as excessive and stringent and sought that the court hold it unconstitutional. A date for hearing these petitions has not been listed as yet.

The law was passed in July 2019 after intense debates in both the lower and upper houses of the Parliament, with opposition parties stating that the law targeted the Muslim community even as the centre asserted that the law would help achieve gender justice for Muslim women.

Rasheed’s petition questions provisions of the law including one which allows relatives of the women to file complaints. The petition stated that this provision could potentially destroy marital relationships in case of false complaint. “This provision is highly detrimental not only to the wife but also to the marital relationship.”

Her petition also sought clarification from the Centre on the assessment that underlies incarcerating Muslim men for divorcing women. “Welfare-oriented legislation would promote amicable resolution of matrimonial disputes rather than criminalise marital discord, particularly criminalisation of only one community…the intent behind the Act is not abolition of triple talaq [instant divorce] but punishment of Muslim husbands,” her petition said.

Rasheed’s lawyer, Zulfikar Ali, said they want to highlight how the law will be detrimental to the interests of Muslim women, which it seeks to protect.” He added Rasheed is also the national general secretary of the Indian Union Women’s League, which he described as the country’s largest Muslim women organisation affiliated to the Kerala-based Indian Union Muslim League (IUML). IUML has three members in Parliament’s lower House, or Lok Sabha.

In August 2017, a five-judge bench of the Supreme Court had declared the practice of talaq-e-biddat (a heretical form of divorce based on a husband pronouncing divorce thrice in quick succession) as unconstitutional. The practice is banned in most Muslim countries including Pakistan.

The verdict came on a petition of five Muslim women, including lead petitioner Shayara Bano, who were abandoned after their husbands pronounced instant divorce.

The Centre initially issued an ordinance after the verdict to criminalise the practice of triple talaq for the want of majority in Parliament’s upper house, or Rajya Sabha, before bringing the law.

The law makes the practice a cognisable offence. An offence of such a nature allows the police to carry out arrests without a warrant. Serious crimes such as theft, rape, and murder are also cognisable offences.

In its petition, Jamiat-Ulama-I-Hind has said there are graver offences like rioting and bribery under the Indian Penal Code for which there is a lesser punishment than instant divorce.

The Awakening Dawn : Legal Aid

Source: The LawZ magazine

Link to the article: https://lawzmag.com/2020/06/18/the-awakening-dawn-legal-aid/

Despite the fact that our legal system functions on the premise that ignorance of law is no excuse, still the achievement of ‘legal literacy’ in its absolute terms remains a myth. Everyone is ‘equal before law’, but beneath this surface there remains a profound inequality in the actual working of the legal system by reason of the indifference of the law to the ‘inequality between the rich and poor’.

Legal aid as Human Right is implicit and also clearly all pervasive. In a developing country like ours, ‘ legal aid’ acts as a catalyst for achieving standards of social and economic development. The aid and assistance of the community in an unequal member have an access to justice on equal footing with the powerful and the privileged is called legal aid, but the concept of legal aid and its content changes as per the needs of every society, as asserted in Maneka Gandhi’s case

By incorporating Art 39(a) into the Constitution on the basis of 42^nd Amendment the concept of legal aid has been brought  within the Constitutional framework and subsequently the Legal Service Authorities Act,1987 has been enacted. Section 12 of this Act prescribes the criteria for giving legal services to eligible persons. In the case of Khatri vs State of Bihar, the Hon’ble Apex court has held that free legal aid to poor under Article 39(a) applies even to granting of bail . The court opined in another leading case of Hussainara Khatoon vs State of Bihar that legal aid is a constitutional right .

It is necessary that people not only be aware of their rights and remedies, they must believe that the enforcement of such rights is possible and that they will get adequate remedies within a reasonable time, on a reasonable expense or no expense. The whole perception must change as  there is a direct relationship between the faith  the people have in an institution and the success of that institution.

The concept of legal aid embraces both the Preventive and Remedial aspects.  A country where over 70 per cent of the population still lives in villages ensuring effective legal literacy must entail that, essential legal provisions which guarantee basic  rights must be simplified and translated into the language of the common man.

In India there are places so remote and underprivileged that local people have no financial capacity to pay the legal fees. Their poverty and illiteracy leads them to believe that they are born with no rights and this very perception makes the notion of imparting 100 percent legal aid a myth.

These harsh realities convince us that proper dissemination of legal aid can only be done  when the ‘conception of rights’ reaches the mass at the grass root level.

• To make justice real, affordable and physically accessible, larger and closer associations of the primary institutions becomes essential. Thereby, the role of Nyaya Panchayat gains prominence. In order to bring about a positive change in the imparting of legal aid, judges must be sensitized to the problems of the poor, they can then assist the Nyaya Panchayat to render speedy justice at the doorsteps.
• A formal tie-up of the Bar Council with the law colleges throughout the country must also be institutionalized to disseminate information to the masses.
• The functions of the Central authority also extends to allocating funds to voluntary associations working at the grass root level for this cause. Here the role of voluntary organizations must be crystallised.

Scrutinizing the authenticity of the organization and the cause of its working and how effective it is must be well assessed by the responsible authorities prior to making them a part of this scheme.

On a number of occasions it has been observed that a NGO after being allotted the project and the necessary funds stops working on the proposed lines and is of no use to the cause. In order to eliminate such encumbrances, the concept of ‘social auditing’ must be introduced whereby the ‘accountability of their work’ is established and  they are made to realise that they are responsible to the people and not for the statistics.

Another important means of streamlining the system would be the inclusion of legal luminaries and educationalists with the NGO’s by the government itself in order to keep a check on the functioning of these voluntary organisations.

• The use of popular medium and traditional media platforms and the tactical use of local language in the hoardings, banners , posters and brochures etc can be employed as a means to an end.
• Innovative means of promoting the concept of legal aid shall be employed by setting up:

Roadside legal aid booths and other stalls in local melas(fairs) and exhibitions while setting up legal aid kiosks around petrol pumps, railway platforms , bus stands, local hospitals and other such places, mostly frequented by the masses.

Anganwadi workers have gained much prominence in the recent past over their contribution for the promotion of the cause of rural women, so their popularity must be tapped to bring about effective legal literacy amongst women.

If the seeds of legal education be sowed in the primary years of upbringing of a child, then it makes a very withstanding impact. Thus we shall propose the introduction of  ‘legal literacy or the need to incorporate knowledge of the basic rights’ as a part of the school curriculum. The appropriate course material and the content of the information must be discussed thoroughly keeping in mind the intake capability and level of interpretation , of a budding child.

The achievement of Legal literacy is not an easy task nor can it be accomplished by one or two institutions alone, however it can be made a reality if all the three organs of the state merge with the contribution of  NGO’s, law schools, international organisations, the media etc and every right spirited individual with the belief in ensuring the ‘Rule of law’.

Revise the law on Penal Code

Source: Indian Express dated 07.07.2020

Link to the editorial: https://indianexpress.com/article/opinion/editorials/revise-the-law-6493221/

Review of penal code, its statutes, is long overdue. Exercise must be guided by imperative of ensuring accountability.

The setting up of a five-member expert committee by the Union Ministry of Home Affairs to overhaul criminal laws in the country is a welcome step that is long overdue. The Indian Penal Code and its corollary laws, the Indian Evidence Act and the Code of Criminal Procedure, were all first enacted in the late 19th-century and, despite proposals and suggestions in the past, have not undergone comprehensive revision.

The Indian Penal Code, the legislation that an ordinary citizen arguably interacts with the most, and which governs his relationship with the state, is still rooted in colonial ideas. Although some changes have been made through amendments and judicial pronouncements, the laws do not reflect the aspirations of a Constitution that gives primacy to liberty and equality. While it took 158 years for the courts to decriminalise homosexuality and adultery — provisions in the IPC that echoed Victorian morality — many others that still remain in the books do not recognise individual agency. This is especially true for women. “Enticing” of a married woman who is “in the care of” a man is an offence that carries a jail term of up to two years, for instance. Too many laws protect and promote patriarchal attitudes within a constitutional framework that promises equality. Sedition, punishable with imprisonment for life, is another colonial spirited law misused by the state against its citizens — and another provision that needs revisiting. Even as new crimes need to be defined and addressed, especially concerning technology and sexual offences, it is important to not give in to populist demands and run the risk of excessive policing and over-criminalising — when dealing with demands for safety, governments often take refuge in stricter laws and harsher punishments. As a renewed debate on the death penalty continues both within and outside judicial circles, the harshest punishment needs a legislative approach which is not just passing the buck to the judiciary. On procedural aspects of criminal law, there is a need to harmonise the statute books with court rulings. Despite “landmark rulings” reading down provisions and inserting safeguards through guidelines, processes of the state are often weaponised against citizens. From raids to arrests and the holding of accused in state custody — criminal law needs to be updated to meet the demands of the democratic temper of the 21st-century.

While the committee debates the idea of criminal justice and what the gamut of laws really achieves, it also needs to place various stakeholders at the heart of this change. If the victim is often on the margins of the justice process, the accused is burdened with institutional delays. Accountability, above all, must guide the balance between the rights of the citizen and imperatives of state.

25 Important Decisions On Specific Performance Of Contract

Source: www.livelaw.in

Read the article by S. Tejasri at the following link:
https://www.livelaw.in/know-the-law/25-important-decisions-on-specific-performance-of-contract-159384#.XwID8eTEZcU.whatsapp

Independence of superior judiciary in question

Source: The Free Press Journal

-- Olav Albuquerque
https://www.freepressjournal.in/analysis/independence-of-superior-judiciary-in-question

Not challenging the government is reneging on judiciary's oath to uphold the fundamental rights of all citizens.

The Bombay High Court by any other name will remain the same. At least, this is what the litigants, lawyers and judges would think. Or so we are told. Not so, feels a petitioner who sought a change-of-name of the 158-year-old Bombay High Court to the more ubiquitous Maharashtra High Court.

This would create a problem because the Bombay High Court also has a bench in Goa, which is a separate state. It had a separate civil law system under the Portuguese with separate civil and criminal codes, a unique succession law which was gender neutral. Hence, changing the name of the Bombay High Court to Maharashtra High Court would be doing a disservice to Goa and Goans, opine some Goan lawyers.

However, the Supreme Court has issued notices to the Union and state governments seeking their response to this plea seeking the Bombay High Court's name be changed. This implies that the judges have taken up the issue seriously. The point here is the apex court is overburdened with life-and-death PILs such as migrants being deprived of their right to life and livelihood under the triumvirate of Articles 14, 19 and 21. Another PIL seeking bonded labour be freed from three brick kilns in Bihar and Uttar Pradesh was heard by a division bench of Justice L. Nageswara Rao and Ravindra Bhat. This was allegedly the same bench which had earlier remarked: "If these migrants want to walk, how can we stop them," which was widely publicised.

The 187 brick kiln bonded labourers include pregnant women and children who are being forced to work in inhuman conditions despite the Bonded Labour Prohibition Act, 1976, according to the petitioner Zahid Hussain. So, the issue of changing the name of the Bombay High Court to Maharashtra High Court which may appease regional chauvinism may be construed as consuming too much judicial time qua weightier issues.

Another broadside has been unleashed by a senior advocate Dinesh Dwivedi who lambasted a former CJI R.C. Lahoti for advising the Supreme Court not to advise the government how to deal with the migrants' woes because the three wings of the state must trust each other.

The 35th CJI Ramesh Chandra Lahoti seems to concur with the 48th (present) CJI Sharad Arvind Bobde that the government has the men, money and materials to handle the migrants' woes. So, those who are selected in secrecy should not advise those who are elected lest this be construed as "the tyranny of the judiciary."

Whether it is tyranny or not, judges of the Supreme Court and 24 high courts take a unique vow to "uphold the Constitution."

This oath implies the judiciary is sworn to uphold the fundamental rights of the 187 bonded labourers and crores of migrants against their biggest adversary which is the elected government. For governments comprise ministers who strive to repay those who elected them by trampling upon the rights of bonded labourers and migrant workers. And when the judiciary headed by CJI Sharad Bobde feel that the judiciary should not tread on the toes of the government during crises such as pandemics and riots, some of these judges are reneging on their oath to uphold the fundamental rights of all citizens against the government. For it is the government which is the biggest litigant in all Indian courts.

This is not to say that Supreme Court judges do not pass orders against governments. A three-judge bench of Justices L. Nageswara Rao, S. Murari and Ravindra Bhat threatened the Y.S. Jaganmohan-led government in Andhra Pradesh with contempt of court if flags belonging to different political parties, including the ruling party, were not removed within four weeks from all government buildings including those belonging to the panchayats.

But these orders are random occurrences. It will be interesting to watch the fate of a PIL filed in the Delhi High Court seeking that the PM CARES Fund should be brought under the ambit of the Right to Information because the chairman of the fund is Prime Minister Narendra Modi and has the home and finance ministers as some of the trustees. Paradoxically, the trustees are sitting on a huge corpus of Rs 10,000/- crores collected by donations from the public and public sector organisations.

How these PILs will finally be disposed of will prove to what extent the superior judiciary is free from government influence. It is these Supreme Court judges who must decide if a PIL seeking to rename India as Bharat is frivolous or not. This is why we need an All India Judicial Service on the lines of the IAS and IPS to ensure the best and the brightest join the subordinate judiciary.

This is why the Modi government will soon enact a new law to create an All India Judicial Service for nearly 20,000 subordinate courts in India. Never mind the striking down of the 99th amendment to uphold judicial independence. Justice Kurian Joseph has publicly declared he regretted striking down the NJAC Act.

Some of our future chief justices will be elevated from this pool of the All India Judicial Service because one-third of high court judges are elevated from district judges or principal judges of city civil courts. Of course, this new law has yet to be passed by Parliament. But the BJP has a sufficient majority to ensure it will be passed. And so this law will ensure the government does have a say in who will be appointed as judges in the subordinate courts of all states. Independence of the superior judiciary notwithstanding.

After all, the Supreme Court is supreme because it is final. Not because it is always right. And CJIs like Justice Sharad Bobde and his predecessor Ranjan Gogoi know this very well.

Trafficking of women more heinous than drug peddling but law lenient: HC

Source: Times of India dated 02.07.2020

-- Dhananjay Mahapatra
Link to the article: https://timesofindia.indiatimes.com/india/trafficking-of-women-more-heinous-than-drug-peddling-but-law-lenient-hc/articleshow/76740991.cms

Cruelty To Wife For Dark Complexion Amounts To An Offence Of Cruelty Under Section 498A: Cal HC

Source: www.indialegallive.com

Link to the article: https://www.indialegallive.com/constitutional-law-news/courts-news/cruelty-to-wife-for-dark-complexion-amounts-to-an-offence-of-cruelty-under-section-498a-cal-hc