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Case Analysis by: Pooja Shrivastava Date of judgment: February 8, 2021 Bench: Justice Sanjay Kishan Kaul, Justice Hrishikesh Roy Court: Supreme Court of India Citation: Writ Petition [Criminal] No.359/2020 Introduction: According to Article 21 of the Constitution of India, 1950, having the fundamental right to select your life partner, which is the subject of this lawsuit. No one may be deprived of their personal life or freedom, unless in accordance with legal procedure, according to Article 21 of the Indian Constitution. Following a denial of their petition by the Allahabad High Court, the petitioners, in this case, turned to the Indian Supreme Court pursuant to Article 32 of the Indian Constitution. In the event that their fundamental rights are violated, both citizens and non-citizens of India have the right to constitutional remedies under Article 32 of the Indian Constitution, which allows them to file a lawsuit directly with the Supreme Court. Facts : According to the plea, Mr Basappa Chandragi lodged a complaint at the Murgod Police Station in the Savadatti Taluk of the Belagavi district. He made the complaint because his daughter Laxmibai Chandragi (petitioner No. 1) had been missing since October 14, 2020. As a result, an FIR (FIR No. 226/2020) was filed, and the investigating officer also made note of all the call information while also recording the statement of Laxmibai's parents and other family members. Following an investigation, it was discovered that Petitioner No. 1 had flown from Hubli to Bangalore before landing in Delhi without telling her parents. She wed Mr Santosh Yadav (petitioner No. 2) after arriving in Delhi without her parents' permission. Then, on October 15, 2020, she decided to transmit her marriage certificate to her parents via the social media platform WhatsApp, informing them of her marriage to petitioner No. 2. Evidently, the investigating officer visited the home of petitioner No. 2 in Ghaziabad, where his parents admitted that they were unaware of the location of the petitioners. Despite the fact that Laxmibai had already wed Santosh and was living with him, the investigating officer (IO) pushed Petitioner No. 1 to provide a statement at the Murgod police station in order to end the case. Upon receiving the IO notice, Petitioner No. 1 responded through a letter, stating that she would be unable to visit the station due to threats from her parents. The investigating officer did not declare the case closed; instead, he issued threats to the petitioners, warning them to return to Karnataka or else a fake case would be made against her husband, petitioner No. 2. The petitioners contend that the uncle of the petitioner No. 1 threatened them. The petitioners sought protection for themselves and their families on October 19, 2020, but even after almost one month, the matter could not be taken up for an urgent hearing. Issues Raised: 1. Do parents have to approve a marriage? 2. The right to marry the person of one's choice is it protected by Article 21? 3. Exist any rules that the police are required to follow when handling such delicate matters? Arguments of the Petitioner: · The knowledgeable attorney for the petitioners argued that the investigating officer did not close the case even though petitioner No. 1 sent a letter explaining why she was unable to visit the Murgod Police station due to life-threatening difficulties from her parents. · He further argued that in the transcript of the conversation between the petitioner No. 1 and the police that was provided to the court, it was noted that the IO had asked her to arrive in Karnataka as soon as possible because otherwise, her family would falsely accuse petitioner 2 of kidnapping, which would unquestionably have a negative impact on his ability to do his job. · Additionally, he warned that if she did not travel to Karnataka, her family members would work with the IO to report her for stealing property, which would be terrible for petitioner No. 2's position. · He persuaded the court that both petitioners were extremely intelligent and well-versed. While petitioner No. 1's wife holds an M.A.Ed., petitioner No. 2 holds an MTech from NIT, Tiruchirappalli. Petitioner No. 1 was a Lecturer at the KLES (Karnataka Lingayat Education Society) Pre-University College in Bailhongal, and it appears that they grew fond of one another during these assignments. Petitioner No. 2 had been hired as an Assistant Professor at the Jain College of Engineering in Belagavi, Karnataka. · He concluded by stating that while the parents of petitioner number two had no issues with their daughter getting married to petitioner number two, the parents of petitioner number one were not. Arguments of the Respondent: · The investigating officer filed an FIR, according to the learned counsel's appeal, even though the parents of petitioner No. 1 were unable to locate their daughter. · Additionally, he claimed that Laxmibai was invited to the Murgod police station because the investigating officer wanted to wrap off the investigation. · The claim that the investigating officer ever threatened the petitioner was refuted by knowledgeable counsel. Judgment: The proceedings in accordance with FIR No. 226/2020 dated 15.10.2020 registered at Murgod Police Station, Belagavi District, Karnataka are quashed in the present case with the hope that the parents of petitioner No. 1 will have the more common sense to accept the marriage and re-establish social interaction not only with petitioner No. 1 but also with the other petitioners. That is the only course of action, in our opinion. The processes resulting from the FIR were declared invalid by the Supreme Court. According to a Supreme Court order, the investigating officer must be sent for counselling on how to handle instances of this nature. Analysis: The police department managed the situation poorly. After speaking with the investigating officials, Laxmi made it apparent that she was married to Santosh and that she felt pressured to leave the police station and return to her hometown to make her statement. Laxmi's statement could readily be recorded by the investigating officer rather than being threatened or coerced into making a false complaint against her husband. The top court accurately noted that educated youth face threats from their families and have been helped by the courts because they are choosing their life partners in a way that goes against traditional societal norms in which caste and religion were important factors. The cases that the court cited made it abundantly clear that people have the freedom to select their life partner in accordance with article 21 of the Indian Constitution, and that the consent of elders is not necessary if both parties freely consent to get married because each person's choice is an expression of their dignity. Conclusion: A fundamental right that is safeguarded by article 21 of the Indian Constitution is the ability to select one's, life mate. This situation demonstrates that the consent of the family is not necessary if two adults agree to get married. From this case, we also learn that no investigating officer or other police official has the ability to compel us to provide a statement at a certain police station. This decision is praiseworthy. This short ruling addresses a problem that many young people in today's world encounter, and it serves as a lifeline for young people or those who pick their life partner without the consent of their families. References: 1) Asokan K. M. & Ors. v. Shafin Jahan (2018) 16 SCC 408. 2) State of Uttar Pradesh v. Lata Singh (2006) 5 SCC 475 3) Union of India v. K.S. Puttaswamy (2017) 10 SCC 1. 4) The Supreme Court of India v. Shakti Vahini (2018) 7 SCC 192. 5) State of Bihar v. Asha Ranjan, 2017 SCC 497.

Case Analysis by: Isha Raje Date of Judgement:25 February 2021 Bench: J. UU Lalit. J. Indira Banerjee, J. KM Joseph Court: Supreme Court of India Citation: Criminal Appeal No. 989 of 2007 Introduction: Murder is defined as the intentional killing of a person without reason. The purpose should be malicious in character. In accordance with section 300 of the Indian Penal Code, if a death is committed with the purpose of causing death, it is murder rather than culpable homicide, and by section 302 of the Indian Penal Code, anybody found guilty of murder faces the death penalty or a lifetime in prison as well as a fine. In situations involving murder, several verdicts are rendered in India. The appeal was filed on behalf of Devilal, the son of Chetran Gujar, and his two sons, Gokul and Amrat Ram, and was made in response to the High Court's decision and order in Criminal Appeal No. 700 of 1999, which was given on September 14, 2006. The appellants were charged in Special Offense Case No. 88 of 1998 in the court of Special Judge (SC/ST), at Mandsaur, M.P., together with Gattubai, the accused Devilal's wife. This case was brought under sections 302 read with 34 of the IPC and sections 3(1)(10) and 3(2)(5) of the Scheduled Castes and Scheduled Tribes (Preventions of Atrocities) Act, 1989. Facts: The appellants in this case, DeviLal and his sons Gokul and Amrat Ram, appealed the High Court of Madhya Pradesh's decision to try the appellant and his sons for a particular offence to the Supreme Court. Ganeshram filed an FIR in this instance. Aneshram was assaulted by Devilal, Gokul, and Amrat Ram using a Kulkarni, talwar, and lathi. He was then escorted to the police station where he filed an official police report before being transferred to the district hospital. In addition to being unable to talk and having low blood pressure, the victim's health was not good. Ganeshram, the victim, passed away around midnight. An autopsy was then performed, and his interior and exterior wounds were examined. It was said that severe bleeding was the cause of death. Following an initial inquiry, accused DeviLal, Gokul, and Amrat Ram were detained, and the appellants, together with accused Devilal's wife Gattubai, were tried in a specific criminal case. After reviewing all of the evidence on record, including medical records and eyewitness statements, the trial court determined that the FIR recorded at the instance could be relied on as the dying declaration. The prosecution proved the offence under Section 302 read with Section 34 IPC against accused DeviLal, Gokul, and Amrat Ram, but not against the fourth accused Gattubai, DeviLal's wife, and none of the accused was found guilty under offences punishable under Section 34 IPC. Then an appeal was filed with the High Court, where it was argued that in light of the medical documentation, the deceased was unable to have provided any statements to the police that might have formed the foundation of an FIR. However, the court rejected the arguments and upheld the conviction and sentence imposed on the defendants DeviLal, Gokul, and Amrat Ram in its verdict from September 14, 2006, which was later overturned by the Supreme Court. According to a court judgment dated 8 April 2009, the defendants DeviLal and Gokul were also freed on bail after serving a total of nine years and four months in jail. A petition was submitted, among other things, stating that the accused Amrat Lal was a minor at the time the offense was committed and claimed juvenile status. According to an investigation and report were given to the honourable court, Amrat Ram was 16 years, 11 months, and 26 days old when the offense was committed. According to the Juvenile Justice (care and protection of children) Act of 2000, the age of juvenility was increased to 18 years, therefore he wasn't a minor as defined by the Juvenile Justice Act of 1986, which set the age of juvenility for male juveniles at 16 years. Amrat Ram should be fined the appropriate amount, which will be decided by the Jurisdictional Juvenile Justice Board. Issues Raised: 1. Whether the Madhya Pradesh High Court's ruling finding the appellants guilty was correct? 2. Is it correct to say that Amrit Lal, the appellant, was a major under the JJ Act of 1986 but a minor under the JJ Act of 2000? The contention of the Petitioner: · Mr Sushil Kumar Jain, the learned Senior Advocate for the appellants, stated that it is inconceivable to assume that Ganeshram could have made any reporting to the police because his condition was not so good and the FIR was registered more than three hours after the act was done. · He also claimed that the witnesses were tutored, which Sajan Bai, the primary witness, agreed with. · Mr Sushil Kumar Jain, the learned Senior Advocate for the appellants, stated that the prosecution witness 7 Laxminarayan admitted when cross-examined that the front of Devilal's house where the offense was committed was not visible to the supposed eyewitnesses. The Contention of the Respondent: · The evidence of Prosecution Witness 9, Dr Kothari, demonstrates that Ganeshram was alive when the initial examination was conducted, according to Mr Harmeet Singh Ruprah, learned Advocate for the State. According to the witness, when the doctor checked Ganeshram, his blood pressure could not be determined; nevertheless, this does not mean that he could not submit a statement to the police two hours earlier. The report plainly stated that the person's inability to talk is only an expert's opinion, and there is no report on the symptoms that he was unable to speak soon after the event or after the FIR was filed. · The learned Advocate Mr Harmeet Singh Ruprah for the State, stated that the testimony of Prosecution witnesses 1 and 2, Sajan Bai and Saman Bai, are fairly coherent, and their presence was taken right from the first stage of reporting the crime, although the distance was just 100 feet from their house to DeviLal's, and no cross-examination was conducted on this. · According to Mr Harmeet Singh Ruprah, a learned Advocate for the State, firearms have also been found. · The involvement of PW1-Sajan Bai and PW2-Saman Bai was mentioned in the FIR, according to Mr Harmeet Singh Ruprah, learned Advocate for the State. The testimony of both of these witnesses establishes that the appellants began an assault on Ganeshram, which resulted in his death. PW1- Sajan Bai's claim that her prior testimony collected during the investigation was read to her does not imply that she was coached to pursue the route of prosecution. It is worth noting that no such inquiries were posed to PW2-Saman Bai. Even if the evidence of PW1-Sajan Bai is excluded from consideration, the evidence of PW2-Saman Bai, together with Ganeshram's deathbed declaration, totally wraps up the case against the appellants. Judgment: In this instance, the court upholds the conclusions reached by lower courts and declares the appellants guilty of the murder offense for which they were held accountable. Therefore, their appeal was denied. The court further held that the dying declaration of Ganeshram and the testimony of his sister-in-law Saman Bai, as well as the discovery of the lathi, axe, and sword used in the murder, were sufficient to establish the prosecution's case against the appellants, even if the testimony of the first main witness Sajan Bai (the wife of the deceased) were disregarded. According to sections 34, 302, and 342 of the Indian Penal Code, the sentences for the two defendants, Devilal and Gokul, stayed the same and included a fine in addition to a lifelong sentence of imprisonment. As the age of a juvenile was raised from 16 to 18 in the JJ Act of 2000, the appellant Amrat Ram's lifetime sentence was overturned and the issue was sent to the jurisdictional juvenile justice board for determination of the proper amount of fine to be imposed on him. The decision was made after citing several earlier rulings, including Hari Ram v. State of Rajasthan, in which the juvenile justice problem was initially addressed, and Jitendra Singh v. State of UP, in which the juvenile justice board was assigned to handle the matter. Finally, As Devilal and Gokul were granted bail by this court decision dated 8 April 2009, they were instructed to appear in person before the relevant police station within two weeks. This was announced by the bench on February 25, 2021. If they don't, their bail bond will be lost, and the police will then arrest them to carry out the penalty. The appeal was rejected in the manner already mentioned. Precedents mentioned in the Case: · Hari Ram vs. State of Rajasthan[i] · Pratap Singh v. State of Jharkhand[ii] · Dharambir v. State (NCT of Delhi)[iii] · Kalu v. State of Haryana[iv] · Jitendra Singh v. State of U. P[v] Case Analysis: In this case, we analysed the ratio decidendi and arguments of the Supreme Court, High Court of Madhya Pradesh, and Trial Court by Sections 34, 302, and 342 of the Indian Penal Code and Juvenile Justice Act 1986, as well as Section 20 of the Juvenile Justice Act 2000. Section 20 of the Juvenile Justice Act of 2000 provided justice to Amrat Ram since the age of a juvenile under the Act of 1986 was raised from 16 to 18 under the Act of 2000. As a result of this change, an inquiry was launched into this matter in 2018, and it was determined that Amrat was a juvenile under the Juvenile Justice Act 2020 at the time of the crime. Focusing on an analysis of the overall circumstances of the case, and considering the chain of circumstantial evidence relied on by the prosecution and noted by the High Court in the impugned judgment, the charge is insufficient and incoherent to allow the conviction of the appellants that basis without a shadow of a doubt. Though the documents on file are suspect, the prosecution has failed to move its case from the domain of "may be true" to the realm of "must be true," as is needed by law for conviction on a criminal charge. It is commonplace to say that in a criminal prosecution, suspicion, no matter how serious, cannot substitute for proof. This remarkable and noteworthy verdict by a three-judge bench of the Supreme Court, which includes the serving CJI Ranjan Gogoi, sends a very loud and clear message to all courts that "suspicion, however severe, can't replace for proof in criminal proceedings." It must be obeyed in letter and spirit by all courts. There should be no deviations. Furthermore, the accused must be given the benefit of the doubt. Conclusion: In this case, Devilal vs. State of Madhya Pradesh, the offense stemmed from a caste dispute, and the accused Devilal, together with his two sons, severely injured Ganeshram, who eventually died. The case was initially heard in a trial court, then in the High Court, which issued a verdict of life imprisonment. This decision was challenged in the Supreme Court, which upheld the conviction of Devilal and his elder son Gokul, while Amrat Ram's case was assigned to the Juvenile Board. I completely concur with the decision. Following the JJ Act of 2000, the third accused was moved to the juvenile jurisdiction board since he was a juvenile at the time of the crime. The sentences of life imprisonment and a fine were imposed by the sections and clauses of the Indian Penal Code. In my opinion, judgment is important. References: [1] Hari Ram vs State of Rajasthan (1998) 236 (SC) [2]Pratap Singh v State of Jharkhand (2005) 6 1 (SCC (J)) [3] Dharambir v State (NCT of Delhi) (2010) 5 344 (SCC) [4] Kalu v State of Haryana (2012) 8 34 (SCC) [5] Jitendra Singh v State of UP (2013) 11 193 (SCC) [i](1998) 236 (SC) [ii](2005) 6 1 (SCC (J)) [iii](2010) 5 344 (SCC) [iv](2012) 8 34 (SCC) [v](2013) 11 193 (SCC)

Case Analysis by: Pratikshya P. Beura Date of judgment: 10 December 2015 Bench: Justice J. Chelameswar, Justice Abhay Manohar Sapre Court: Supreme Court of India Citation: Writ Petition (Civil) No. 671 of 2015;(2016)1 SCC 463 AIR 2016 SC 33 Introduction: The verdict by the Supreme Court of India, upholding an amendment by the Haryana government to impose educational prerequisites to contest local body elections runs against democracy. Amendments were made to the Haryana Panchayati Raj Act, of 1994 eliminating a huge section of the society by its discriminatory qualifications from contesting the Panchayat elections. The constitutional validity of those amendments was challenged in Rajbala v. State of Haryana SCC[AIR 2016 SC 33] on 10 December 2015, where the Supreme Court said its constitutionality proposing that these amendments satisfied the ‘Classification’ test. By scrutinizing two tests it can be determined whether a provision is constitutionally valid or not; the arbitrariness test and the classification test. Facts : ● The Haryana Panchayati Raj (Amendment) Act, [2015] was passed by Bharatiya janata party. Five more categories of people are stated as incapable of contesting elections for any one of the elected offices under this act. [1]Provisions specifically under challenge are Section 175 (1) (t), (u), (v), and (w). The categories are: (i)Persons who are charged in criminal cases for punishable offences with imprisonment for not less than ten years. (ii)Persons who fail to pay their dues, if any, owed by them to either a Primary Agricultural Cooperative Society or District Central Cooperative Bank or District Primary Agricultural Rural Development Bank, (iii)Persons should have no arrears of electricity bills, (iv)The required educational qualification should be possessed by the person (v)A person should have a functional toilet at their place of residence ● Three petitioners claiming to be political activists challenged the act on the grounds of being violative of article 14 of the Indian constitution i.e. the right to equality. Issues Raised: 1. Whether the Right to contest an election and the Right to vote is a constitutional right or statutory right. 2. Whether the Haryana Panchayati Raj (amendment) Act 2015 is constitutionally valid or not. 3. Whether an Act becomes Unconstitutional if it disqualifies an enormous section of society from contesting elections. Arguments of the Petitioner: The petitioners challenged the act that it was arbitrary and violative of article 14 and a statute can be declared unconstitutional on this basis, the petitioners relied upon the judgement of the court in [2] Subramanian Swamy v. Director, Central Bureau of Investigation& another it was argued that the impugned act will disqualify more than half of the population to contest elections that were eligible. The most affected will be the poorer sections of society, scheduled castes and women as the majority of them are unlikely to possess the minimum educational qualification prescribed in the act. The two clauses of paying off their debt to cooperative bodies and electricity bills challenged that they impose an unreasonable burden on the voters as the majority of the rural population are agriculturists and are heavily indebted so, this creates an irrelevant classification which has no connection to the objective sought to be achieved by this act. Clause (w) of Section 175(1) which dismisses any person from contesting in an election if such person has no toilet at his place of residence; the petitioners argued that a large number of the rural population are below the poverty line and simply cannot afford the construction of a toilet and to disqualify them on this basis would be unreasonable and discriminatory. Arguments of the Respondent: The learned attorney general appearing for the respondents submitted that right to contest an election is not a fundamental right but a statutory right, it can be subject to qualifications and disqualifications under Article 243F which gives power to the state legislature to prescribe prerequisites for contesting election to any panchayat and prescribing prerequisites such as minimum educational qualification cannot be said to be arbitrary or irrelevant. The learned attorney general also argued that elections are expensive phenomena and no person in debt would contest the elections. In Haryana the agriculture sector is strong enough so, farmers there can lead a life without debt. If a person wants to contest an election he/she is not debarred by any authority to clear all his/her debts and contest the elections. The submission to the last issue was that the government has come up with policies to construct toilets at their residence. Judgment: It was held that both the rights- The right to vote and the Right to contest an election are constitutional rights of the citizen. The possession of a minimal education degree by a person contesting a local body election has a reasonable nexus with the object sought to be achieved as education is necessary and plays an important role in the development of the country. It was held that the state had provided enough financial assistance to those who do not have toilets at their place of residence so, section 175(w) of the Act has reasonable nexus and is not contrary to any provision of the constitution. It was also held that Section 175(v) is intra-vires the constitution and is thus constitutionally valid. Analysis: In [3] PUCL vs. Union of India a three-judge bench examined the nature of the “Right to vote” and it was held that it is a constitutional right but not a statutory right. In [4] Javed vs. State of Haryana a three-judge bench examined the nature of the “Right to contest” and the learned judge R.C. Lahoti held that the right to contest an election is neither a fundamental right nor a common right. It was questioned whether an act can be held unconstitutional on the ground of arbitrariness. In the case [5] McDowell & Co. vs. State of Andhra Pradesh the issue was raised that the [6] Andhra Pradesh liquor prohibition amendment act 1955, has exempted certain manufacturers and consumers from the ban and the petitioner content it to be arbitrary. The learned judges held that the court can hold an act unconstitutional on the basis that it is violative of fundamental rights and lacks legislative competency. The court cannot strike away an act or piece of legislation just because it is arbitrary and reasonable. In the case [7] K. Krishna Murthy (Dr.) & Others vs. Union of India and another, "what is a well-settled principle in Indian law that the right to vote and contest election does not have the status of fundamental rights instead, they are in the nature of legal rights..." In the case of [8] Prabhakar Rao vs. State of Andhra Pradesh, there was an ordinance that increased the age of retirement from fifty-five to fifty-eight and later became an act but during the process of amendments and ordinances, some employees were deprived of the benefits of pension. Hence, in this case, it was held that the state legislature is unconstitutional as it has made a classification between the employees of the State Government and reasonable and without any rationale. Conclusion: It is conspicuous that the quotes do not dismiss a piece of legislation solely on the basis of arbitrariness; The two conditions to make any act unconstitutional are lack of competency in the legislature and violative of any of the fundamental rights conferred by part 3 of the constitution. The provisions enacted were in the larger public interest and needed. The two rights right to vote and the right to contest an election are merely constitutional and legal rights. Lastly, the court decided the amendment is intra-vires to the constitution. In my opinion, the amendment was a pressing priority because if the society is well governed it would lead to the development of the society as a whole. References: [1] The Haryana Panchayati Raj (Amendment) Act, 2015. Amendment of section 175 of Haryana Act 11 of 1994 [2] Subramanian Swamy v. CBI, (2014) 8 SCC 682 [3] People’s Union for Civil Liberties v. Union of India, (2003) 4 SCC 399 [4] Javed vs State of Haryana (2003) 8 SCC 369 [5] State of Andhra Pradesh v. McDowell & Co., (1996) 3 SCC 709 [6] The Andhra Pradesh Prohibition Act, 1995 Act No. 17 OF 1995 [7] K. Krishna Murthy (Dr.) & other v. Union of India & another (2010) 7 SCC 202 Para 77 www.india.gov.in [8] B. Prabhakar Rao v. the State of AP, 1985 Supp SCC 432

Case Analysis by: Roshan Thakur Date of Judgement: May 18, 2022 Bench: Justice L. Nageswara Rao, Justice B.R. Gavaiand, Justice A.S. Bopanna Court: Supreme Court of India Citation: 2022 SCC Online SC 635 Bureaucracy prolongs the agony of the prisoner but Supreme Court becomes the bulwark of human rights and brings justice to the prisoner. Introduction: A.G Perarivalanwas finally set free with liberty after being incarcerated for more than three decades. The Honourable Supreme Court took the stand of justice in the face of frivolous bureaucracy and held that the governor has no discretionary power under Article 161 of the Constitution to forward the mercy petition to the President of India. The case sets forth another landmark precedent in the judiciary’s pursuit of bringing reforms to the prison system and rehabilitation to prisoners. Facts: The Appellant was accused of the assassination of Rajeev Gandhi, former Prime Minister of India, on 21.05.1991. He was convicted for offences under the Indian Penal Code, 1860 (‘IPC’), the Arms Act, 1951, the Explosive Substances Act, 1908, the Passport Act, 1967, the Foreigners Act, 1946, the Indian Wireless Telegraphy Act, 1933, and the Terrorist and Disruptive Activities (Prevention) Act, 1987 (‘TADA’). He was sentenced to death by the TADA Court. However, after filing a writ petition in the High Court of Madras, which was further transferred to the Supreme Court, the Supreme Court commuted the death sentence to life imprisonment. This case is related to the remission of the Appellant after the Appellant filed a string of mercy petitions to both the Governor of Tamil Nadu and the President of India under articles 161 and 72 of the constitution, respectively. The mercy petition to the president was rejected on August 12, 2011, and the mercy petitions to the Governor were rejected twice. However, on 30.12.2015, the Appellant filed a petition under Article 161 of the Constitution for the remission of his sentence, and a resolution was passed by the Tamil Nadu Cabinet on 09.09.2018, recommending the release of the Appellant, which was sent to the Governor. After a little more than two years, the Governor forwarded the petition along with the recommendation by the Tamil Nadu Cabinet to the President of India. Legal Issue Raised: Whether Article 161 of the Constitution grants power to the Governor to send the petition to the President of India without deciding on the recommendation made by the State Cabinet on remission of the sentence of the Appellant? Arguments: Arguments presented by the Appellant Mr Gopal Sankaranarayanan submitted to the Hon’ble Court that, under Article 161 of the Constitution, forwarding the petition to the President is beyond the jurisdiction of the Governor. It was his contention that the State Cabinet’s recommendation is obligatory on the Governor and that the Governor has no independent discretion in that matter. Mr Rakesh Dwivedi, learned Senior Counsel, substantiated the argument by submitting that the scope of Articles 161 to 163 has been explained by more than one Constitution Bench of the Supreme Court, according to which, the Governor is bound by the decision of the Cabinet of Ministers. Furthermore,he advanced his argument by stating that no provision in the Constitution enables the Governor to refer to the recommendation of the State Cabinet for the decision of the President of India. Arguments advanced by the Respondent Mr K.M. Natraj, learned Additional Solicitor General of India, argued that in the current case, it is the President of India that has the appropriate authority to decide the petition and the Governor was well within his jurisdiction to forward the petition. He relied on the case of Union of India v. Sriharan, where it was held that it is only the President of India who can take a decision on the remission/commutation of the sentence of the Appellant.[1] The respondent proceeded further by submitting that there are exceptions for when the Governor can act on his own and these have been laid down in M.P. Special Police Establishment v. State of M.P., where the court held that there are circumstances such as where on facts of the case there is an apparent prejudice of the Council of Ministers and/or the decision of the Council of Ministers is shown to be based on non-consideration of relevant factors, the Governor can act in his discretion.[2] The Judgement: The Honourable Supreme Court gave its interpretation of the word ‘satisfaction’ and stated that the satisfaction of the Governor or President in the Constitution does not mean personal satisfaction’ in the literal sense but it is in the constitutional sense under the Cabinet system of Government. It is the satisfaction of the Council of Ministers, on whose aid and advice the Governor or President has to act. The Hon’ble Court put reliance on the case of Maru Ram v. Union of India, where the Supreme Court held that the Governor is bound by the advice of the cabinet. The court also stated that the case of M.P. Special Police Establishment v. State of M.P.is inapplicable in this case because there are no ‘relevant factors’ that the cabinet ignored. Therefore, the Supreme Court held that the Governor ought not to have sent the recommendation made by the State Cabinet to the President of India. The Hon’ble Court held that the State Government is the appropriate government in the current case. Justice Lalit relied on the case of K.M. Nanavati v. State of Bombay where it was held, “…in matters concerning offences under Section 302 IPC, it is the Governor under Article 161 of the State Government as appropriate Government under the CrPC who have been exercising appropriate powers.”[3] In light of the above arguments and the conduct of the appellant throughout his time in prison, the Hon'ble Supreme Court set the appellant at liberty, given that he had spent more than 31 years already in jail. Precedents in the Case: · Union of India v. Sriharan [1] · M.P. Special Police Establishment v. State of M.P. [2] · K.M. Nanavati v. State of Bombay [3] · Samsher Singh v. State of Punjab [4] · M.P. Special Police Establishment v. State of M.P. [5] · Epuru Sudhakar v. Govt. of A.P. [6] Analysis: This judgement has consolidated the position of the courts in India in the aspect of upliftment of prisoners and their rehabilitation, and the Honourable Supreme Courtprovidedimperativejustice to the appellant who waited for thirty-one years. The court has rightfully held that the Governor had no power to forward the petition to the President of India. The Court arrived at this conclusion by giving the reasoning that the Indian model of parliament is based on the British parliament and that the Governor, whilst occupying the position of the head of the executive in the State, doesn’t carry on the executive government in practicality. As mentioned in paragraph 5 of the judgement, it is virtually the Council of Ministers in each State that carries on the executive government. It would have been unsound and illogical to allow the Governor to do so at their discretion as it would violate the precedents set by the Hon’ble court which enunciated that in matters with respect to the exercise of the powers under Articles 72 and 161, the two highest dignitaries must act not on their own discernment but in compliance with the aid and advice of the ministers.[4] The apex court gave its interpretation of the term "appropriate government” in this case. Hon’ble Justice Lalit said that the offence under Section 302 IPC is directly related to “public order” under Schedule VII List II Entry 1 of the Constitution and is in the exclusive domain of the State Government. He stated, “Even if it is accepted for the sake of argument that the offence under Section 302 IPC is referable to Entry 1 of List III, in accordance with the principles as discussed hereinabove, it is the Executive Power of the State Government alone which must extend, in the absence of any specific provision in the Constitution or in the law made by Parliament. Consequently, the State Government is the appropriate Government in respect of the offence in question in the present matter.” The court took cognizance of the facts of the case and the precedents while relying on the case of M.P. Special Police Establishment v. the State of M.P.but the court rightfully pointed out that the current case is different as there were no relevant factors that the cabinet of ministers did not consider.[5] The Cabinet of Ministers was very responsible and reasoned in its recommendation, as it can be seen that the appellant had served for more than 31 years and had spent most of his life behind bars. The apex court also took notice of this as this is one of the major points that can’t be overlooked while discussing this case. After scrutinising the judgement, it would become apparent that the questions answered in this case were not only related to Article 161 of the Constitution and the interpretation of the term ‘appropriate authority but the judgement also considered the position of the prisoners in the Indian prison system and rightfully brought attention to their mental health. The notion of citizens regarding prisoners is that they deserve to live in prisons for as long as their sentence is, but this would be a gross violation of the prisoner’s right to life as it would strip the prisoner away from repentance and start again. The prison system should be focused on the welfare of the prisoners and their rehabilitation. The Court relies on its judgement in Epuru Sudhakar v. Govt. of A.P. where the court held, “Given petitions under Article 161 pertain to the liberty of individuals, inexplicable delay, not on account of the prisoners is inexcusable as it contributes to adverse physical conditions and mental distress faced by a prisoner, especially when the State Cabinet has taken a decision to release the prisoner by granting him the benefit of remission/commutation of his sentence.”[6] Therefore, the apex court has solidified its position in the welfare of the Indian society which the prisoners are very much a part of. Conclusion: This judgement has shown the brilliance of the Indian judiciary and its independence. It has stopped the excesses and abuse of power by the authorities. It has upheld the spirit of the constitution by rightly interpreting Article 161 and Article 72 of the Constitution, which directly deals with the welfare and rehabilitation of prisoners. This case has also brought to light how ineffective the prison system has become, and how any attempts at rehabilitation of prisoners are met with a ridiculous amount of bureaucratic red tape. The same is aggravated when the authorities are concerned about a delay in taking a decision, which in the current case was over 2 years, and even then, it wasn’t aligned with the Constitution. References: 1. (2016) 7 SCC 1 2. (2004) 8 SCC 788. 3. AIR 1961 SC 112 4. (1974) 2 SCC 831 5. (2004) 8 SCC 788 6. (2006) 8 SCC 161 [1] Union of India v. Sriharan, (2016) 7 SCC 1. [2] M.P. Special Police Establishment v. the State of M.P., (2004) 8 SCC 788. [3] K.M. Nanavati v. State of Bombay, AIR 1961 SC 112. [4]Samsher Singh v. the State of Punjab, (1974) 2 SCC 831. [5]M.P. Special Police Establishment v. the State of M.P., (2004) 8 SCC 788. [6]Epuru Sudhakar v. Govt. of A.P., (2006) 8 SCC 161.

Authored By:Dhanishtha Gupta Date of JUdgement-20 May 2022 Bench- Justice A.K. Mohapatra Court – Orissa High Court Citation- [W.P.(C) No.4779 of 2022] INTRODUCTION The freedom of transgender people to choose their self-identified gender was supported in this case, and the Centre and state governments were ordered to recognize their gender identity as male, female, or third gender. FACTS ·Balaji Kondagari, the petitioner’s father, worked for the Rural Development Department’s Executive Engineer RW Division in Rayagada as a government employee. ·Following his death, Smt. Binjama Kondagari, the late BalajiKondagari's wife, was sanctioned and earned the family pension. ·Smt. Binjama Kondagari died on July 11, 2020, as a result of old age-related health problems. Following that, the current petitioner filed to the Executive Engineer RW Division, Rayagada for the issuance of a family pension in her favour under Rule 56 of the Odisha Civil Services (Pension) Rules, 1992. It’s also worth noting that the present petitioner and her sister are both single, widowed, or divorced daughters, and therefore qualify for a family pension. ISSUE Whether or not a transgender daughter has the right to claim the family pension? RULE Articles 14 and 21 of the Constitution of India, Rules 56(1), 56(5)(d) Odisha Civil Services (Pension) Rules, 1992, Rule 5 of the Transgender Persons (Protection of Rights) Rules, 2020 and read with Section 6 of the Transgender Persons (Protection of Rights) Act, 2019. BACKGROUND Balaji Kondagari, the petitioner's father, worked for the Rural Development Department's Executive Engineer RW Division in Rayagada as a government employee. Following his death, Smt. Binjama Kondagari, the late BalajiKondagari's wife, was sanctioned and earned the family pension. Smt. Binjama Kondagari died on July 11, 2020, as a result of old age-related health problems. Following that, the current petitioner filed to the Executive Engineer RW Division, Rayagada for the issuance of a family pension in her favour under Rule 56 of the Odisha Civil Services (Pension) Rules, 1992. It's also worth noting that the present petitioner and her sister are both single, widowed, or divorced daughters, and therefore qualify for a family pension. CONTENTION OF PETITIONER Despite the fact that Rule 56 of the Orissa Civil Services (Pension) Rules, 1992 permits for the payment of a family pension to an unmarried daughter, the petitioner's counsel, Mr OmkarDevdas, alleged that the authorities dismissed the petitioner's request for a family pension. It was also argued that the authorities had treated the petitioner unjustly because she was a transsexual woman and had failed to provide her with the family pension she was entitled to when her parents died. The petitioner's counsel further claimed that the petitioner was a transsexual woman, as proven by a certificate issued by the District Magistrate on December 2, 2021. CONTENTION OF THE RESPONDENT The State's lawyer, on the other hand, said that the matter looked to be unprocessed and that it was awaiting consideration at the Accountant General (A&E), Odisha, Bhubaneswar. He further stated that the petitioner's case had previously been approved by the relevant authority, namely the Ex. Engineer, R W division. JUDGEMENT Considering the previously mentioned verifiable position and the examination of the regulation set somewhere near the Hon'ble Supreme Court of India and thinking about the entries made by the individual gatherings, this Court is of the considered view that the candidate as a transsexual has each option to pick her orientation and in like manner, she has presented her application for the award of family benefits under Section 56(1) [A1] of Odisha Civil Services (Pension) Rules, 1992. Further such right has been perceived and sanctioned by the judgment of the Honorable Apex Court in The National Legal Services Authority herein referred to as NALSA[A2] ’[A3] s Case and in that capacity, the law set somewhere around the Hon'ble Supreme Court is restricting on all. Subsequently, the current writ appeal documented by the applicant should be permitted and the equivalent is thus permitted. PRECEDENT (NALSA) vs Union of India Case[A4] [1], [2014(AIR 2014 SC 1863)] The NALSA case judgment prompted the acknowledgement of transsexual individuals as the 'third orientation' by the Supreme Court of India, confirming that the principal privileges conceded under the Constitution of India will be similarly pertinent to them, and gave them the right to self-ID of their orientation as male, female or third orientation. This case left a mark on the world and is a milestone choice which got a beam of light on the existence of transsexuals as it was a significant lawful advance to roll out an improvement towards the torment looked by one that segment of society which was the same despite everything confronted separation, since years. It was noticed the 'third orientation' character and maintained the essential freedoms of the LGBTQ people group in India. The judgment likewise guided State to do whatever it may take to elevate them financially and secure transsexual people's freedoms in all structures whether monetary, social, clinical, instructive or political and bring government assistance plans for them. ANALYSIS · In the case of NALSA vs. Union of India, the petitioner references the Supreme Court of India's ruling. All human beings are born free and equal in dignity and rights, according to Article 1 of the Universal Declaration of Human Rights, which was established in 1948. According to Article 3 of the Universal Declaration of Human Rights, everyone has the right to life, liberty, and personal security. · Article 14 of The Constitution of India, 1950 states that the state must not deny equality before the law or equal treatment under the law to "any individual" within India's territory. · The Principal Accountant General has been ordered by the Court to give a family pension to an unmarried transgender kid of a deceased State government employee within six months, defending the legal rights of transgender people in accordance with the Supreme Court's decision in NALSA (supra). According to the Court, the petitioner has the right to choose her gender as a transgender person, and she has asked for a family pension prescribed under the rules, [A5] 56(1) of the Odisha Civil Services (Pension) Rules, 1992. A right like this has also been recognized and legalized by the Supreme Court. As a result, the current writ petition of the petitioner ought to be granted. The analysis can be further critically analyzed in these cases where rights of the LGBTQ community are discussed, Naz Foundation vs Government of NCT Of Delhi[2], (WP(C) No.7455/2001) Justice (Retd) K S Puttaswamy vs Union of India[3](2017) 10 SCC 1, AIR 2017 SC 4161, Navtej Singh Johar v Union of India[4], (AIR 2018 SC 4321) and Arun Kumar v Inspector General of Registration[5](W.P. (MD) NO. 4125 OF 2019) etc. CONCLUSION Transgender people's freedom to self-identify as male, female, or third gender was also protected, with the federal and state governments obligated to recognize their gender identity as male, female, or third gender. The petitioner's plea was directed to be processed by the Principal Accountant General (A&E), Odisha, Bhubaneswar, within six weeks of the date of transmission. BIBLIOGRAPHY · Naz Judgement, 2009 · Justice (Retd) K S Puttaswamy vs Union of India · Navtej Singh Johar v Union of India · Arun Kumar v Inspector General of Registration [1]NALSA vs Union of India Case, 2014 (AIR 2014 SC 1863) [2]Naz Foundation vs Government of NCT Of Delhi, (WP(C) No.7455/2001) [3]Justice (Retd) K S Puttaswamy vs Union of India (2017) 10 SCC 1, AIR 2017 SC 4161 [4]Navtej Singh Johar v Union of India, (AIR 2018 SC 4321) [5]Arun Kumar v Inspector General of Registration (W.P. (MD) NO. 4125 OF 2019)

By: Rajdeep Dutta Citation: AIR 1996 SC 2715: (1996) 5 SCC 647 Bench: Justice Kuldip Singh, Justice Faizan Uddin, Justice K. Venkataswami Court: Supreme Court Date of Judgement: Apr-07-2016 Facts of the Case The Petitioner ‘Vellore Citizens Welfare Forum’ filed a Public Interest Litigation (PIL) under Article 32 of the Constitution. This petition was filed against the enormous scope of natural debasement and water contamination caused due to excessive release of untreated effluents by the tanneries and other industries of Tamil Nadu into the river Palar. River Palar is the main source of portable water for the nearby surrounding areas and the heavy contamination of it via effluents discharged from various tanneries and factories had resulted in serious water pollution which had made it unfit for use. The discharge of pollutants was not restricted to the water body only but had also been discharged in the nearby agricultural fields, Waterways and open roads. Later, it was discovered by Tamil Nadu Agricultural Research Centre, Vellore that an approximate of 35,000 hectares of agricultural land had turned entirely or partially unsuitable for cultivation. This case was decided in 2016. This is one of the Landmark cases decided by The Supreme Court where the Apex Court examined and analysed the relationship between environment and industrial development and entrenched the principle of preventive methodology in environmental protection.[1] Issues Raised 1. Whether the tanneries and factories should be allowed to keep on working at the expense of the health of millions of individuals and the environment? 2. It was submitted by the petitioner the entire surface and sub-soil water of river Palar has been polluted resulting in the non-availability of potable water to the residents of the area. It is stated that the tanneries in the State of Tamil Nadu have caused environmental degradation in the area. The Argument of the Petitioner An autonomous review led by Peace Members, a non-legislative association, covering 13 towns of Dindigal and PeddiarChatramAnchayat Unions, uncovers that 350 well out of an absolute 467 utilized for drinking and water system purposes have been dirtied. The Same survey was submitted by the petitioner in support of his contentions. The Petitioner submitted another report which was a survey conducted by lawyers M.R. Ramanan and P.S. Subramaniam on the Legal Aid and Advice Board of Tamil Nadu’s request. It was conducted in Solar village. It stated that 176 chemicals were found in the tannery effluents. The amount of Chemicals being released by the Tanneries into the water bodies would both in the short and long term cause irreversible damage to the surroundings. It was also mentioned that about 40 litres of water are required to process only 1 kilogram of leather which is an excessive amount and would sooner or later deplete the water source. Aside from this, an overview led by the Tamil Nadu Agricultural University Research Center, Vellore, showed that roughly 35,000 hectares of land in the tanneries belt had been delivered unsuitable for development either absolutely or to some degree. Above all it was contended that the Tamil Nadu Pollution Control Board and the public authority had been asking the tanneries for about the most recent decade to set up either a Common Effluent Treatment Plant for a gathering of themselves or set up their different profluent treatment plants. The Central Government likewise said that it would give sponsorships to the foundation of Common Effluent Treatment Plants. Yet, the vast majority of the tanneries were working without treatment plants. The Arguments of the Respondent Learned counsel for the Respondents brought up an objection that the standard with respect to total dissolved solids (TDS) fixed by the Board was not defended. This Court by the request dated April 9, 1996 coordinated the NEERI to look at this perspective and offer its viewpoint. In its report dated June 11, 1996, NEERI has advocated the principles specified by the Board. The Ministry of Environment and backwoods (MEF) has not completely set down principles for inland surface water release for total dissolved solids(TDS), sulfates and chlorides. The choice of these norms rests with the individual State Pollution Control Boards according to the prerequisites in light of neighbourhood site conditions. The principles specified by the TNPCB are supported by the before-alluded contemplations. The endorsed norms of the TNPCB for inland surface water release can be met for tannery squander waters cost-really through appropriate embed control measures in tanning activity and effectively operated wastewater treatment plants (ETPs & CETPs). Judgement The Hon’ble Court observed that in pursuant of its order some tanneries had set up individual pollution control devices but despite that they were closed. The Court held that no tanneries can be allowed to operate unless it has satisfied the necessary pollution control standards and further directed the Pollution Control Board to inspect the units and file a report regarding this. The Court further directed that all those Units which are not in a position to construct the effluent treatment devices within this period may approach the Board as and when they complete the devices. The North Arcot District and Chengai MGR District Association and other Associations of the Tanners shall bear the expenses of the inspection teams organized by the Boards. • The Supreme Court examining the report delivered its judgment making all efforts to maintain a harmony between the environment and development. • The Court admitted that these Tanneries in India are the major foreign exchange earner and also provide employment to several thousands of people. But at the same time, it destroys the environment and poses a health hazard to everyone. • The court delivering its judgment in favor of petitioners directed all the Tanneries to deposit a sum of Rs. 10,000 as fine in the office of Collector as fine • The Court further directed the State of Tamil Nadu to award Mr M. C. Mehta with a sum of Rs. 50,000 as appreciation for his efforts for the protection of the Environment. • The Court in this case also emphasized the constitution of Green Benches in India dealing specifically with matters relating to environment protection and also for speedy and expeditious disposal of environmental cases. Critical Analysis Clearly, the Environment Act contains helpful arrangements for controlling tainting. Taking into account that the essential inspiration driving the Act is to make power under Section 3(3) of the Act with agreeable powers to control tainting and protect the environment. It's a pity to date no power has been contained by the Central Government. The work as most would consider being normal to be done by a specialist to the extent that Section 3(3) read with various game plans of the Act is being done by this Court and various Courts in the country. The time has come for the Central Government to comprehend its responsibility and legitimate commitment to defend the tainting environment in the country. Expecting the conditions in the five districts of Tamil Nadu, where tanneries are working, are permitted to continue with then in the near future all streams/streams will be dirtied, underground waters soiled, cultivating territories turned fruitless and the occupants of the area introduced to real disorders. It is, consequently, crucial for this Court to direct the Central Government to take fast action under the game plans of the Environment Act. The Constitutional and legitimate courses of action protect a singular's more right than wrong to outside air, clean water and defilement-free environment, but the wellspring of the right is the essential standard guideline right of a clean environment. There are more than 900 tanneries working in the five regions of Tamil Nadu. Some of them may, right now, have presented the essential tainting control measures, they have been dirtying the environment for more than 10 years and on occasion regardless, for a more lengthy period. This Court has in various orders exhibited that these tanneries are in danger to pay pollution fines. The polluters ought to compensate the affected individuals and besides pay the cost of restoring the hurt climate. Conclusion This is one of the milestone decisions given by the Supreme Court of India on the questions of insurance of climate. The Supreme Court applied the idea of Sustainable improvement while condemning the said matter. It applied this idea through the polluter pays standard and the prudent guideline[2]. It accurately directed out that it isn't right toward doing advancement of businesses at the expense of the well-being and lives of individuals and subsequently it ought not to be allowed. Manageable advancement implies that the necessities of the current age ought to be satisfied without hurting or obliterating the climate and regular assets required for the group of people yet to come. Hence, by keeping this perspective on adjusting the modern turn of events and natural assurance as to the main priority, the court precluded as needs be. Additionally, by remembering the polluter pay standard the court requested the fine. As it is critical that whoever has dirtied the climate and made harm it should repay the harmed property or individual. References I) (1996) 5 SCC 647 ii)https://www.indiacode.nic.in/bitstream/123456789/16614/1/epa_1986.pdf((Accessed on 10 May 2021) iii)https://lawsisto.com/legalnewsread/OTA0NA==/Case-Analysis-Vellore-Citizens-Welfare-Forum-vs-Union-of-India((Accessed on 10 May 2021) [1] (1996) 5 SCC 647 [2]https://thelawexpress.com/vellore-citizens-welfare-forum-vs-union-of-india-case-brief

Authored By: Mayank Shandilya Date of judgement: 31/08/2020 Citation: Special Leave Petition (Crl.) Dairy No. 39528/2018 Bench: Justice Arun Mishra, Justice Vineet Saran, Justice Indra Banerjee, Justice M.R. Shah, Justice S. Ravindra Bhat Court: Supreme Court of India Overview of the Case In the 2018 case of Mohan Lal v. The State of Punjab, a three-judge bench of the Supreme Court ruled [1] that in the event of the Investigating Officer (I.O.) and the informant being the same person, the case would be vitiated. It was considered that such a situation created a bias and the defendant was entitled to be acquitted. Further, it was also mentioned that from the date of judgement, no such benefits will be passed on to any of the pending trials. However, in the case of Mukesh Singh v. State (Narcotic Branch of Delhi), [2] the validity of this judgement was questioned by a two-judge bench consisting of Justices U.U. Lalit and M.R. Shah disaccorded the decisions in Mohan Lal’s case. They fundamentally saw it fit to transfer the case to a larger bench consisting of a minimum of three judges. Facts of the Case The accuracy of the decision in Mohan Lal v. the State of Punjab was questioned by the constitutional bench. Mohan Lal had previously taken a firm stand when the high courts had laid down conflicting decisions. The case, however, was not an unusual situation in which a formal criminal investigation, the informant and the investigating officer were essentially the same people. For instance, in cases related to drugs, it is common for the raiding officer to be the first informant. But the question arises, can a raiding officer continue to investigate the case? And if so, does that question the legitimacy of the investigation? The case of Mohan Lal sums up the answers as: (1)The same police officer who has reported the case will not continue as its investigating officer. (2) In the event that this happens, the procedure should be changed as it creates a bias. Although the facts in the case of Mohan Lal were clear in the Narcotic Drugs and Psychotropic Substance Act, 1985 [3], the decision of the bench came in effect to a larger application, to the extent of considering criminal investigations in general. Following that, in Varinder Kumar v. the State of Himachal Pradesh [4], a three-judge bench (two of whom were members of the Mohan Lal Bench) upheld the previous decision but with numerous reservations (and some with language issues concerning the accused's procedural rights). However, within only a year, doubts were raised regarding the decision by the two jurors in the case of Mukesh Singh. Concerning Issue If the informant is the same person as the investigating officer, will an investigation under the Narcotic Drugs and Psychotropic Substances Act be renewed simply because of the fear of bias? Arguments Advanced The appellants of the Mukesh Singh case praised Mohan Lal's statements in his verdict, particularly his sense of fear of favouritism. Along with this, they also attempted to interpret [5] Sections 42 and 52 of the NDPS Act. As stated in Section 52[3], a police officer who conducts a search/seizure/seizure, under Section 42 must send that person or items to an authorized investigating officer of the case under Section 53. As a result, they have attempted to demonstrate that the legislature intended that the investigator and informant should not be the same individual. The entry, search, arrest, and detention powers of the Section 42 officer are limited, and as a result, an officer has no authority to investigate. Section 54 of the NDPS Act puts the burden of proof on the respondent who has been found in possession but is unable to react satisfactorily, as it gives the impression that the respondent has committed an offence. As a result, in an investigation under the NDPS Act, the finding and discovery of an object are extremely critical, and it was also argued that if a suspect is found in possession of a restricted object, Section 54 allows for the charge to be considered, while Section 35 allows for the consideration of an unreasonable attitude. An investigation into this subject should be done by an impartial agency/officer because the raiding officer or the assaulting party participating in the retrieval are witnesses to this reported fact, which may be the case. As a result, the law must be updated to protect the defendant's interests, and a thorough investigation must be conducted by several parties, namely, the police officers authorized under Sections 42 and 53 of the NDPS Act. On the other hand, respondents, argued that the Mohan Lal Case continued to apply Section 157[6] of the Criminal Procedure Code, which allows an investigator to conduct an investigation based on his or her knowledge of the acquittal; ignoring Figure (e) of Section 114 of the Indian Evidence Act, which allows the Court to express the view that legal proceedings are being carried out properly; and ignoring the principle stated in H.N. Rishbud v. State of Delhi[7]. Further, it did not apply to Section 465 of the Criminal Procedure Code, which states that an unlawful act committed before, during, or after the processes, or in any other proceeding, would not allow for the revision of any judgment, sentence, or order save in the event of a failure of justice. He did not consider the principle that malafide should be established and not considered, and that mala fides are essential if the case presents implicit evidence. He did not consider the principle that illegal protests should be raised in the appropriate category and misunderstood the NDPS Act's dual structure as well as the retrenchment policy. Moreover, he failed to follow the principle that under the Act, investigations are limited to investigative agencies, the functions of investigative and judicial agencies are consistent and inclusive, and interference is only permitted if it is a clear case of abuse of power that will determine the facts of each case. The defendants further asserted that the proper technology should not be used as the one and only basis for contesting all future investigations and convictions and that the matter should instead be tried on its merits. Many well-established cases will be dismissed for technical reasons if this does not happen. The court’s observations The Constitutional Bench has stated that where a police officer receives information regarding litigation and registers it, and subsequently investigates it, there is no illegitimacy under the Criminal Procedure Code. Sections 154, 156, and 157, on the other hand, allow the officer in charge of a police station to limit the specifics of a criminal complaint by writing and then investigating it. The Court went on to look at the relevant parts of the NDPS Act, concluding that Section 52 requires any police officer arresting a person under sections 41, 42, 43, or 44 to tell the apprehended person of the reason for his or her detention. Additionally, clause 2 of Section 52 additionally states that any person arrested or property seized pursuant to a warrant issued under subsection 1 of Article 41 must be sent to the Magistrate who gave permission as soon as possible. Every person arrested and subsequently arrested under Article 2 of Sections 41, 42, 43, or 44 will be sent without undue delay to the officer in charge of the nearest police station, or to a police officer authorized under Section 53. in charge of the police station, according to Section 3 of Article 52. Section 53 of the NDPS Act does not require that all officers authorized to employ the powers of a police officer in charge of a police station to investigate matters be present. Officials authorized to exercise power under sections 41, 42, 43, and 44 appear to have never anticipated that officers in charge of a police station in the investigation of cases under the NDPS Act could not be officers in charge of a police station in the investigation of cases. The act does not expressly permit a person with knowledge or complainant to be an investigator and officer in charge of a police station in order to investigate matters. Taking the opposing viewpoint, Section 53 and the related provisions of the NDPS Act should be amended and/or any non-existent, invalid item should be supplemented. The Court pointed out that whether the inquiry of the informant in question was impartial or not was always decided at trial. The investigator in question will be named as a witness and interrogated, and police evidence will be regarded in the same way as any other witness' testimony, with no rule that his or her testimony cannot be relied upon without the confirmation of independent witnesses. This Court held in Devender Pal Singh v. State (NCT of Delhi) [8], that believing that a person acts with integrity is as effective in the police force as believing that other individuals act with integrity, and it is not a way to determine mistrust and suspicion without cause. Judgement After noting all of the concerns and relevant provisions of the NDPS Act as well as the Cr. P.C, the Court concluded that there was no reason to mistrust the informant's veracity or to call into question the prosecution's whole case just because the informant had investigated the matter. All forms of persecution cannot be dismissed based on mere fear or suspicion, and the defendant must not be released until he or she can show and prove partiality and discrimination. The Court further found that, because the NDPS Act is a special Act with a particular procedure to be followed under Chapter V, and because of the protection granted by the Act itself, Section 58, there are no restrictions on the informant conducting his own inquiry. The trial will be held in all cases when the informant is an investigator, and the defendant has the right to be found not guilty, according to a legal suggestion. Conclusion The court concluded its verdict by stating its position on the contentious issue in Mohan Lal's case as follows: "In each situation, the question of bias would be determined by the facts and circumstances. As a result, just because an informant is an investigator, the investigation would not have suffered as a result of injustice or prejudice, and hence the defendant has no right to be acquitted on the basis that the informant is an investigator. In each circumstance, a decision must be made. The Court's negative decision in the case of 'Mohan Lal v. the State of Punjab (2018)', as well as any other decision that holds that an informant cannot be an investigator and that, in such a situation, the defendant is entitled to conviction, is not good law, and they are immediately dismissed." Nonetheless, the conclusions demonstrate a logical reversal of Mohan Lal's automatic discrimination rule. It is not conceivable in a legal system where law enforcement is ineffectual and where standards are always in control when it comes to issues that measure the impact of procedural protection Furthermore, I continue to believe that a rule like this will incentivize law enforcement to seek out vacancies that they perceive as violations of the law, rather than the law furthering the promise of a fair investigation. Finally, the dreadful nature of the terms of the breach of the process was bound to give the courts a second opinion about Mohan Lal's continued operation, as evidenced by the quickness with which the matter was settled by the Constitutional Bench. References [1] Mohan Lal v. The State of Punjab, AIR 2018 SC 3853 [2] Mukesh Singh v. State Narcotic Branch of Delhi, Diary No. 39528/2018 [3] NDPS Act, 1985, No. 61, Acts of Parliament, 2005 (India) [4] Varinder Kumar v. the State of Himachal Pradesh, 2019 SCC OnLine SC 190 [5] NDPS Act, 1985, No. 61, Acts of Parliament, 2005 (India) [6] Cr. P.C, 1973, No. 2, Acts of Parliament, 2005 (India) [7] H.N. Rishbud v. the State of Delhi, 1955 AIR 196, 1955 SCR (1)1150 [8] AIR 2002 Supreme Court 1661, 2002 CriLJ 2034, 2002 (2) Crimes 133 SC, 97 (2002) DLT 57 SC, JT 2002 (3) SC 264, 2002 (3) SCALE 139, (2002) 5 SCC 234, 2002 2 SCR 767

Authored by: Pankaj Kumar Citation: [1991 SCC (1) 598] Date of judgment: 09/01/1991 Division bench: K.N. Singh, N.D. Ojha, JJ. Court: The Supreme Court of India Introduction The Right to life is a fundamental right under Article 21 of the constitution of India, and it also includes the right to the enjoyment of pollution-free water and air for full enjoyment of life. For the enforcement of a fundamental right, public interest litigation can be filed under Article 32 by any person apart from the one whose fundamental right is violated, on the account of their poverty or disability or socially or economically disadvantaged position, but the public interest litigation cannot be invoked by a person or body of persons to satisfy his or its personal interest. Facts • Subhash Kumar, the petitioner filed a petition under Article 32 of the constitution of India by the way of public interest litigation for the issuance of writ or direction directing the director of collieries, West Bokaro Collieries at Ghatotand, district Hazaribagh in the Bihar State and the Tata Iron & Steel Co. Ltd. to stop forthwith discharge of sludge/slurry from its washeries into Bokaro river, as a result of which, the water of Bokaro river become unfit for drinking and irrigation purpose thereby causing risk to the health of the people. • The petitioner asserted that despite several representations, the State of Bihar and the State Pollution Control Board have failed to take any appropriate action against the respondent co. • The petitioner further prayed for interim relief from this court that he will be allowed to collect sludge/slurry pouring from the respondent company. • Despite all the allegations, the Bihar State Pollution Control Board has informed the court that the Board has already directed the Bokaro Collieries to take effective steps for improving the quality of the effluents going into the river Bokaro. • The Board further directed that the washeries shall perform dislodging of the settling tanks at regular intervals to achieve discharge of effluents within the standards prescribed by the Board. • Further, Tata Iron & Steel Co. Ltd has been granted permission to continue discharging waste into the river Bokaro, only in accordance with sections 24 and 25 of the Water (Prevention and Control of Pollution) Act, 1974. Key Contentions/ Issues Raised • Whether public interest litigation under article 32 can be maintainable for personal interest? • Whether the water of the Bokaro river is polluted due to the discharge of sludge/slurry from the respondent company? • Whether the Bihar State Pollution Control Board has failed to take appropriate steps? Arguments Advanced 1. Arguments presented by the petitioner: According to the petitioner, the surplus waste in the form of sludge/slurry is discharged as an effluent from the washeries of the respondent into the Bokaro river which gets deposited in the bed of the river and as a result of which the river water is not fit for drinking purpose and also posing risks to the health of people living in the surrounding area. The petitioner further alleged that the State of Bihar and the State Pollution Control Board have failed to take any action against the respondent company. 2. Argument presented by the respondent: The learned counsel for the respondent contended that the Board has taken all the necessary steps to stop the pollution of the Bokaro river. The respondent company in accordance with sections 25 & 26 of the Water (Prevention and Control of Pollution) Act, 1974 applied for sanction from the Board, to discharge their sewage from their outlets. The Board before granting sanction analyzed their sewage which was being watched regularly and monitored, to see that the discharges don’t affect the water quality of the Bokaro river adversely. Judgment The judgment held that Article 32 is designed for the enforcement of a fundamental right of citizens by the Supreme Court. It provides for an extraordinary procedure to safeguard the fundamental right of citizens. Under Article 21 of the Constitution, the Right to live is a fundamental right, and it includes the right to the enjoyment of pollution-free water and air for full enjoyment of life. If anything endangers or impairs that quality of life in derogation of laws, every citizen has the right to have recourse to Article 32 of the Constitution for removing the pollution of water or air which may be detrimental to the quality of life. A petition under Article 32 for the prevention of pollution is maintainable at the instance of affected persons or even by a group of social workers or journalists. But recourse to preceding under Article 32 of the Constitution should be taken by a person genuinely interested in the protection of society on behalf of the community. Public interest litigation cannot be invoked by a person or body or person to satisfy his or her personal grudge and enmity. If such petitions, under Article 32 are entertained it would amount to an abuse of process of the Court, preventing speedy remedy to other genuine petitioners from this Court. Under Article 32 of the Constitution, personal interest cannot be enforced through the process of this Court in the garb of the public interest litigation. Public interest litigation contemplates legal proceedings for vindication or enforcement of fundamental rights of a group of persons or community which cannot enforce their fundamental rights on account of their incapacity, poverty, or ignorance of the law. A person invoking the jurisdiction of this Court under Article 32 should approach this Court for the vindication of the fundamental rights of affected persons and not for the purpose of vindication of his personal grudge or enmity. Under the garb of the public interest litigation, it is the duty of this Court to discourage such petitions and to ensure that the course of justice is not obstructed or polluted by unscrupulous litigants by invoking the extraordinary jurisdiction of this Court for personal matters. In view of the above contention, this petition has been filed not in any public interest but for the petitioner’s personal interest and for these reasons, the petition is dismissed with costs. Precedent mentioned • Bandhua Mukti Morcha v. Union of India [1] • Sachindanand Pandey v. State of West Bengal [2] • Ramsharan Autyanuprasi & Anr. v. Union of India & Ors [3] Case analysis On the facts as appearing from the pleadings and the specific averments contained in the counter-affidavit filed on behalf of the respondents, prima facie it appears that the petitioner, an influential businessman, had been purchasing sludge/slurry from the respondent company for the last several years but when the respondent company refused to succumb to the petitioner’s pressure of supplying more quantity of sludge/slurry he tried to remove the slurry in an unauthorized manner. There was intrinsic evidence in the petition itself that the primary purpose of filing this petition is not to serve any public interest, instead, it is in self-interest as it would be clear from the prayer made by the petitioner in the interim stay application. The prayer for interim relief made by the petitioner clearly indicates that he is interested in collecting the slurry and transporting the same for the purpose of his business. On the other hand, it is evident from records that the State Pollution Control Board has taken effective steps to check the pollution of the Bokaro river. Conclusion The significant point to note about public interest litigation is that it discards the traditional concept of locus standi, which means that only the person whose legal rights are being violated can approach the court for redress. The Right to live is a fundamental right under Article 21 of the Constitution, and it includes the right to the enjoyment of pollution-free water and air for full enjoyment of life. A person invoking the jurisdiction of this court under Article 32 by way of public interest litigation must approach this court for the vindication of the fundamental right of affected persons and not for the purpose of vindication of his personal grudge or enmity. Every person should be acting bona fide and with a view to vindicating the cause of justice. Bibliography [1](1984) 2 SCR 67 [2] (1987) 2 SCC 295 [3] (1989) Suppl. 1 SCC 251

Authored By: Saumya Singh Paternity: Presumption or Truth? Court: Supreme Court of India Judgment Date: 06 January 2014 Citation: [Criminal Appeal No. 000024-000024 of 2014] (arising out of Special Leave Petition (CRL.) No. 8852 of 2008) [Diary No. 28336 of 2008] Parties: Nandlal Wasudeo Badwaik (Petitioner) and Lata Nandlal Badwaik (Respondent 1), Netra Alias Neha Nandlal Badwaik (Respondent 2) Bench: Justice Chandramauli Kr. Prasad and Justice Jagdish Singh Khehar Introduction: There is a very famous saying that "Paternity Is A Presumption and Maternity Is A Truth". Even though presumption has got more weightage in our society than the truth but it is fought more in court-rooms than the truth. In this case of Nandlal Wasudeo Badwaik versus Lata Nandlal Badwaik &Anothers [i], the honourable Supreme Court of India has asserted “where there is a conflict between a conclusive proof envisaged under the law and a proof based on scientific advancement accepted by the entire community to be correct, the latter must prevail over the former”. Facts of the Case: Nandlal Wasudeo Badwaik(Petitioner) and Lata Nandlal Badwaik(Respondent 1) were married on June 30, 1990, at Chandrapur. The petitioner was alleged to be the father of Netra Alias Neha Nandlal Badwaik (Respondent 2 - a girl child). It appears in this case that their marriage did not work for long, and soon they landed on rough terms. The wife soon filed an application claiming maintenance under section 125 of the Code of Criminal Procedure, but the trial court dismissed the same application by order dated December 10, 1993. After that, the wife resorted to a fresh proceeding claiming maintenance for herself and her daughter under section 125 of the Code of Criminal Procedure. Her contention was that she started living with her Petitioner-husband on June 20, 1996 and stayed together for about 2 years, and during that period she conceived a child in her womb. She was then sent to her parents' place for delivery and she gave birth to a girl-child (Respondent 2 herein). Petitioner-husband confronted the claim and alleged that whatever his wife has asserted that she stayed with him since 20 June 1996 is false. He also denied that respondent 2 is his daughter, and according to him, there was no physical relationship between the two of them. The trial court accepted the wife's plea and granted maintenance of Rs. 900/- per month to the wife(Respondent 1) and Rs. 500/- per month to the daughter (Respondent 2). A revision petition and a petition under Section 482 of the Code of Criminal Procedure were filed in response to the aforementioned order, however, both were dismissed. In opposition to these orders, the Petitioner preferred an SLP (Special Leave Petition). The honourable Supreme Court of India, in an SLP challenging the paternity of the child, allowed the prayer of the Petitioner for conducting the DNA test. The DNA test was conducted at the Regional Forensic Laboratory, Nagpur and it was opined that the Petitioner was excluded as being the biological father of Respondent 2. Respondent 1 was not satisfied with the result and made a request for a re-test. The court allowed her prayer and a re-test was conducted at the Central Forensic Laboratory, Hyderabad. This test also shows that the Petitioner is not the biological father of Miss Neha Nandlal Badwaik (Respondent 2) and at this stage, the counsel for respondents submitted that the appellant had failed to establish that he had no access to his wife at any time when she could have conceived the respondent 2, that the direction for DNA-test ought not to have been given and thus the result of such a DNA-test should be ignored. The honourable Supreme Court of India rejected the contention and observed that the coordinating bench have properly considered the circumstances of this case and was right in ordering the DNA test. Issues raised before the Supreme Court: The issues raised in this case are as follows: a)Whether the results of a DNA(Deoxyribonucleic Acid) test results are accurate and whether there is any presumption under section 112 of the Indian Evidence Act. b)Whether the Appellant is a biological father of Respondent 2? Relevant Provisions: a) Section 112 of the Indian Evidence Act, 1872 - Birth during the marriage, conclusive proof of legitimacy.[ii] b) Section 125 of the Code of Criminal Procedure, 1973 - Order for maintenance of wives, children and parents.[iii] Case Laws Referred: a) Goutam Kundu v. the State of W.B.,(1993) 3 SCC 418 b) BanarsiDass v. TeekuDutta,(2005) 4 SCC 449 c) Bhabani Prasad Jena v. Orissa State Commission for Women,(2010) 8 SCC 633 d) Goutam Kundu(supra), BanarsiDass(supra) and Bhabani Prasad Jena(supra) e) Kamti Devi v. PoshiRam,[(2001) 5 SCC 311] The decision of the Honorable Supreme Court: The honourable Supreme Court of India held that while the truth or fact is known, in our opinion, there is no need or room for any presumption. In our opinion, when there is a conflict between a conclusive proof envisaged under the law and a proof based on scientific advancement accepted by the world community to be correct, the latter must prevail over the former. We must understand the distinction between legal fiction and the presumption of fact. Legal fiction assumes the existence of a fact which may not really exist. However,the presumption of a fact depends on the satisfaction of certain circumstances. Those circumstanceswould logically would lead to the fact sought to be presumed. Section 112 of the Evidence Act does not create a legal fiction but provides for a presumption. The Court allowed this appeal and set aside the impugned judgement so far as it directs payment of maintenance to respondent 2(daughter of the spouse- Netra alias Neha Nandlal Badwaik). Conclusion: In this case, the honourable Supreme Court gives weightage to the DNA test under Section 45 of the Indian Evidence Act over the legitimate presumption under section 112 of the Indian Evidence Act.As in this case, the honourable court has changed the presumption under section 112 of the Indian Evidence Act 1872, which has been followed from the time of its enactment date. This section states that the husband had to prove that he has no access to his wife during the time period when the child was begotten. It can be proved by impotency(unproductiveness) or being far away from the wife. However, the latter is difficult to prove because “access and non-access mean the existence or non-existence of opportunities for sexual intercourse and it does not mean actual cohabitation". Through this case, the honourable Supreme Court for the first time favours the innocent man to prove his paternity. This ruling of the apex court helps the innocent husband to prove his non-access to his wife by way of a DNA test. References: [i] Special Leave Petition (CRL.) No. 8852 of 2008, Date of judgment 6 January 2014. [ii] Section 112 of the Indian Evidence, 1872. [iii] Section 125 of the Code of Criminal Procedure, 1973.

Case analysis by: Vishakha Pandey Citation : [(2011) 3 SCC 650], Criminal Appeal No. (271/2011) Date of Judgement: 31st January 2011 Bench: Justice Altamas Kabir, Justice Cyriac Joseph Court: Supreme Court of India Facts of the case: This appeal was filed before the Supreme Court following the order passed by the Nagpur Bench of Bombay High Court ordering the appellant to vacate her matrimonial house with regards to the petition filed following to proceeding from the Session’s Court wherein the High Court confirmed the order of the session court judge to withdraw all the respondent from the matter. The appellant here was married to Respondent 1 on 20th January 2005. The marriage between the appellant and respondent was registered under the Special Marriage Act, 1954. After the marriage the appellant was residing with her husband in his house which was located in the Khorej Colony in Amravati, the appellant here also mentioned that Respondent 2 and Respondent 3 also resided with them in the same house. The appellant mentioned about brutalities of her marriage that started after a period of one year. She filed a police complaint against her husband under section 498 A of IPC,1860 for assaulting her. She further filed an application against all the three respondents. On 16th June 2007 when the brutalities by her husband were at their peak, she was beaten mercilessly up to a situation it became unbearable for her, and to such beating, she lodged a complaint against him under section 498 A of the Indian Penal Code,1860. The appellant also filed the complaint under section 12, section 18, section 19, section 20, and section 22 of the Protection of Women from Domestic Violence Act, 2005 against the other respondents, i.e. R2 and R3. The appellant filed a suit before the judicial magistrate of First Class under section 23 of the Domestic Violence Act, 2005. The Judicial Magistrate in turn directed R1 to pay monthly maintenance of a sum of Rs. 1500/- to the appellant and no dispossession will be allowed of the appellant from her matrimonial house by any respondents whomsoever. Criminal appeals and applications filed by aggrieved R1 before the Sessions Judge and High Court were dismissed. Then R2 and R3 approached First Class Magistrate but their applications were also dismissed. They filed an appeal and argued on the ground that women cannot be made respondents in Domestic Violence proceedings. The Court accepted their appeal and set aside the command, allowing dispossession of the appellant from her matrimonial house, which exclusively belonged to R2. It was not a “shared house”. However, the Court directed for an alternative i.e. R1 to provide separate accommodation for the appellant or need to make an additional payment for it. The appeal filed by the appellant in Sessions Court was answered on a conclusion that “females” are not included under “respondents”. The High Court also took a similar stand and was in favour of deleting the names of R2 and R3 from proceedings and directed that the appellant should vacate the matrimonial house. And in turn this appeal. Issues of the case: 1. Are females included within the ambit of “respondents” under 2(q) of the Domestic Violence Act,2005? 2. Are females excluded from being proceeded against under the Domestic Violence Act,2005? Relevant Act/Sections: 1. Section 2(q) of The Protection of Women from Domestic Violence Act, 2005 2. Section 498-A of India Penal Code,1860 Appellant’s contention: A basic reading of the Domestic violence Act,2005 provision says that a wife or a female in a live-in relationship (in the nature of marriage) may file a complaint against her husband’s/male partner’s relatives. The HC erred in readily confirming that “relative” excludes females, as the term is not defined in the Act. Respondent’s contention: Since the expression “respondent” does not expressly include females, it reveals the intention of the lawmakers to deliberately exclude them. Final Decision/Judgement: The Supreme Court after hearing the learned counsels representing both the parties in the above matter and after considering the facts and the precedents submitted and established by the Judges to support the pleadings of the parties in the matter, states its observation that the Supreme Court should consider the contention mentioned by the learned advocate while submitting the prejudicial remark on the working of the High Court that relying on the facts finding of the Trial Court. The High Court has wrongly confirmed the order of the Trial Court where it affirmed the direction to delete the names of the respondent which were important for the conclusion of the case and appropriate application of the intention of the party. The High court in providing the rationale that no female in the case of domestic violence can be made a party to the matter of any offense committed under the Domestic Violence Act,2005, applies the correct interpretation of the female person in reading the definition of the respondent in the Act. The plain reading of the definition might be contrary to the mind of the legislature applied while enacting such an act. Further, it will only serve the purpose if such definition or word is understood with reference to its context, and thus court further states that it was wisely decided by the court to present this view. The court in understanding the matter and considering the viewpoints of the Session’s Judge and the High Court of Bombay the court finds itself unable to sustain the order by the respective institution of the Judiciary in relation to an interpretation formed of the respondent under section2(q) of the Domestic Violence Act, 2005. The court mentioned that for reference to this matter, it would be wise if the court itself states the section 2(q) here: "Respondent" herein means any adult male person who is, or has been, in a domestic relationship i.e. husband to the aggrieved person and against whom the aggrieved person has asked for any relief under this Act; Provided that an aggrieved wife or female living in a relationship in the character of marriage may also file a complaint against any relative of the husband or the male partner." The court states that this above definition though excludes the female member of the house from being party to any criminal suit but the section which defines the complaint widens the scope of the complainant by stating that any person male or any relative of such male member who is in a domestic relationship with the female of the house who has lodged a complaint i.e. the aggrieved party(wife) about domestic violence that provides a fair meaning under the definition to understand the mind of the legislature. The court holds the opinion that if the legislature wants to exclude the female from being the person against whom the complaint cannot be filed under the Domestic Violence Act,2005 such specifications would have been mentioned by the legislature clearly instead of adding a provision that states that any relative or the member can be a party under the domestic violence whereas no specific definition of the relative has been mentioned and here the court for serving the purpose are of the opinion that while interpreting such clause or provision an inclusive interpretation fulfils the required cause. The court decides on the matter by stating that it is true and can be believed that such exclusion was a mere interpretation error, not the intent of the legislature. The Session Judge and the High Court of Bombay were wrong when deciding the matter it was decided on the wrong interpretation of section 2(q) of the Domestic Violence Act, 2005, and should be carried on. The Supreme Court decides that the judgment by the earlier court be set aside and by allowing the appeal and suggested that the trial court should also proceed against the other respondents. Case Analysis: The main body of Section 2(q) of the Protection of Women from Domestic Violence Act, 2005 states that a respondent is an “adult male person”, the provision mentioned herein widens the scope of proceedings by stating that an aggrieved wife or female living in a relationship of marriage can file a complaint against a relative of her husband/male partner. This invalidates the argument that the legislative intent was to exclude females. The Appeal was with a direction to the Trial Courts to consider R2 and R3 as respondents in the proceedings. Conclusion: Although Section 2(q) of the domestic violence act,2005 expressly states that a respondent is an “adult male person”, or any relative of the husband /male partner who is in the relation of marriage with the aggrieved party i.e. the wife could be made respondent. Exclusion of the female relatives like a mother-in-law or sister-in-law was merely an interpretation error not the intent of the legislature. References: ● https://www.lawyersclubindia.com/judiciary/dv-act-s-2-q-case-law-females-can-be-respondents-in-dv-complaints-sandhya-wankhede-vs-manoj-bhimrao-wankhede-and-others-2011-3-scc-650-4216.asp ● https://lexpeeps.in/sou-sandhya-manoj-wankhade-vs-manoj-bhimrao-wankhade/

Authored By: Pankaj Kumar Court: The Hon’ble Supreme Court of India Citation: [(2008) 4 SCC 190] Date of Judgment: 10 January 2008 Division Bench: Justice Tarun Chatterjee & Justice P. Sathasivam Introduction: We live in an era where globalization, far from being a fashionable economic ideology, is more an indispensable international imperative. Today, no country, however powerful can afford to remain economically isolated. Every country endeavours to make its domestic markets capable of attracting foreign investment. But due to some laws, there was a general perception amongst the international business community that India’s domestic markets were not as receptive to foreign investment as were the markets of other countries in Asia. The International community as well as the national community with the view to resolve commercial disputes introduced arbitration law. Arbitration fundamentally is a method of settlement of disputes by which litigants to the disputes get the same resolved through a third person called arbitrator without having recourse to a court of law. The Arbitration and Conciliation Act, of 1996, is based on the UNCITRAL Model law which is suited to contemporary requirements and plays a key factor to increase the level of foreign investment in our domestic economy. Facts: · Venture Global Engineering, the appellant, in this case, was a company incorporated in the United States of America with its principal office at 33662, James J Pampo Drive, Fraser, Michigan, USAfiled this appeal challenging the final order and judgment dated 27.2.2007 passed by the High Court of Andhra Pradesh, whereby the Division Bench of the Andhra Pradesh High Court dismissed their appeal. · Appellant-Company and Satyam Computer Services Limited (hereinafter called the respondent No.1-in this case), a registered company having its office at Mayfair Centre, S.P. Road, Secunderabad, Telangana entered into a Joint Venture Agreement to constitute a company named Satyam Venture Engineering Services Ltd. (hereinafter called respondent No.2) herein in which both the appellant and respondent No.1 have 50 percent equity shareholding. · Another agreement was also executed between the parties on the same day being Shareholders Agreement (hereinafter called SHA)which provides that disputes have to be resolved politely between the parties and failing such resolution, the disputes are to be referred to arbitration. Section 11.05 of the SHA provides for certain terms and conditions as regards the resolution of the disputes. According to clause(c) of Section 11 of the SHA which stated that notwithstanding anything to the contrary in this agreement, the Shareholders shall at all times act in accordance with the Companies Act and other applicable Acts/Rules being in force, in India at any time. · Respondent No.1 alleged that the appellant had committed an event of default underthe Shareholders Agreement owing to several venture companies becoming bankrupt and they had also exercised its option to purchase the appellant-companyshares in Satyam Venture Engineering Services Ltd.at its book value. · Respondent No.1 filed a request for arbitration with the London Court of International Arbitration and which appointed Mr. Paul B Hannon as sole arbitrator on 10.9.2005. The sole Arbitrator on 3rd April 2006 passed an award directingVenture Global Engineeringto transfer the shares to respondent No.1. On 14.4.2006, respondent No.1 filed a petitionbefore the United States District Court, Eastern District Court of Michigan (US Court) to recognize and enforce the award. · The appellant company objectedbefore the US Court by filing a cross-petition to nullify the enforcement of the Award and he contended that the order of transfer of shares in favor of respondent No. 1violated Indian Laws and Regulations specifically the Foreign Exchange Management Act, 1999 and its notifications. · The appellant filed a suit before the Ist Additional Chief Judge, City Civil Court, Secunderabad on 28.4.2006 seeking a declaration to set aside the award and permanent injunction on the transfer of shares under the Award, andthe District Court passed an ad-interim ex parte order of injunction, inter alia, restraining respondent No.1 from seeking or effecting the transfer of shares either under the terms of the Award or otherwise. · In response to that, respondent No. 1 filed an appeal before the High Court of Andhra Pradesh and the High Court admitted the appeal and directed interim suspension of the order of the District Court but made it clear that respondent No.1 would not affect the transfer of shares until further orders. · On 13.07.2006, in response to the summons served upon the respondents, respondent No.1 appeared in the Court and filed a petition under Order VII Rule 11 C.P.C. for rejection of the plaint. The appellant filed an objection to the application. The trial Court allowed the said application and rejected the plaint of the appellant. · Challenging the said order, the appellant filed an appeal before the High Court, and the High Court dismissed the appeal holding that the award cannot be challenged even if it is against the public policy and in contravention of statutory provisions. · Against the said order, the appellant preferred the appeal by way of a special leave petition. Key contentions/ Issues raised: · Whether the Indian Courts have jurisdiction under Arbitration and Conciliation Act, 1996 to set aside the foreign arbitral award? · Whether Part I of the Arbitration and Conciliation Act, 1996 would apply where the seat of arbitration is outside India? · Whether the aggrieved party entitled to challenge the foreign award which was passed outside India in terms of Section 34 read with section 9 of the Act? Arguments advanced: 1. Arguments presented by the appellant: A. The learned counsel for the appellant contended that the provisions of Part I of the Act would apply to all arbitrations including international commercial arbitrations and all proceedings relating thereto and Part-I would apply unless the parties by agreement, express or implied, exclude all or any of its provisions. He heavliy relied on the decision given in the case of Bhatia International vs. Bulk Trading S.A. & Anr.(2002). B. The learned counsel for the appellant further pointed out that respondent No.1 violated the agreement between the parties by seeking enforcement of the transfer of the shares in the Indian company by approaching the District Court in the United States. 2. Arguments presented by respondents: A. The learned counsel for the respondent contended that Section 48(1)(e) read with Section 48(3) of the Act specifies that an action to set aside a foreign award within the meaning of Section 44 of the Act would lie to the competent authority of the country in which, or under the law of which, that award was made. B. No application under Section 34 of the Act would lie to set aside the award and hence the civil suit filed at Secunderabad is not maintainable. Judgment: The Supreme Court follow the dictum laid down by the three-judge bench in the case of Bhatia International vs. Bulk Trading S.A. & Anr. and stated that the provisions of Part I of the Act would apply to all arbitrations including international commercial arbitrations and all proceedings unless the parties by agreement, express or implied, exclude all or any of its provisions. Court further held that the overriding section 11.5 (c) of the SHA cannot be ignored lightly. The non-obstante clause would override the entirety of the agreement including sub-section (b) which deals with the settlement of the dispute by arbitration. Sub-section (c), therefore, would apply to the enforcement of the Award which declares that, notwithstanding that the proper law or the governing law of the contract is the law of the State of Michigan, their shareholders shall at all times act in accordance with the Companies Act and other applicable Acts/Rules being in force in India at any time. Necessarily, enforcement has to be in India, as declared by this very section which overrides every other section in the Shareholders Agreement. The court held that respondent No.1, therefore, totally violated the agreement between the parties by seeking enforcement of the transfer of the shares in the Indian company by approaching the District Courts in the United States. Accordingly, both the orders passed by the City Civil Court and of the High Court are set aside. The court further held thatwe request the concerned Court to dispose of the suit on merits one way or the other within a period of six months from the date of receipt of a copy of this judgment. The Civil appeal is allowed to this extent. No costs. Precedent mentioned: · Bhatia International vs. Bulk Trading S.A. & Anr. [1] · Oil & Natural Gas Corporation Ltd. vs. Saw Pipes Ltd. [2] Case analysis: The SupremeCourt in the case of [ONGC v. SAW PIPES][1]expand the meaning of the term ‘Public Policy of India’. Moreover, this interpretationhas provided limitless judicial intervention in the arbitral award, something that has not been intended by the legislature, and the same is very much criticized within and outside India. However, the term ‘Public Policy of India’ is nowhere defined in the Act of 1996, though it is used in section 34(2)(b)(ii) and section 48(2)(b) of the Act. The term “Public Policy of India” for the purpose of this section refers to the principles and standards constituting the general or fundamental policy of the State established by the Constitution and the existing law of the country, and the principles of justice and morality. The Court in the present case shows a serious concern by an implication that Indian public policy might be by-passed if an arbitral award in respect of properties situated in India were sought to be enforced abroad and a debtor residing in that foreign country was to personally comply with the award for fear of sanctions for contempt of court. The Court concluded that the Indian courts had jurisdiction to set aside a foreign arbitral award simply by following the reasoning of its earlier decision, Bhatia International[2],regarding the scope of Part I of the Indian Act 1996. The decision given in the present case has somehow shown the indication that the trend of the Indian Courts to subject foreign arbitral award to greater scrutiny and interference, even though the Act itself curtail to a greater extent the power of the Courts to interfere in the foreign award passed by the foreign seated arbitration. Conclusion: The very fundamental aspect of the Arbitration Act is that the party's autonomy is of the utmost importance and the law governing arbitration proceedings is the law of the choice of the parties, or, in the absence of an agreement, the law of the country in which the arbitration is held. The Act itself provides that judicial intervention shall be very minimal but over time, arbitration proceedings have become susceptible to the same ailments which afflict normal legal processes. The language employed by the Parliament in drafting sub-section(2) of Section 2 is clear and unambiguous. Saying that Part I would apply where the place of arbitration is in India tantamounts to saying that it would not apply where the place of arbitration is not in India.Thus the courts must refrain from examining the correctness of the validity of the award on any ground other than enumerated in section 34 of this Act. Bibliography: [1] (2002) 4 SCC 105 [2] (2003) 5 SCC 705 [1] Oil & Natural Gas Corporation Ltd. v. Saw Pipes Ltd., AIR 2003 SC 2629 [2]Bhatia International vs. Bulk Trading S.A. & Anr., (2002) 4 SCC 105

Authored By: Smita Goswami The right not to be deported is ancillary or concomitant to the right to reside or settle in any part of the territory of India guaranteed under Article 19(1)(e). Court: Supreme Court of India Date: 8th April 2021 Bench: Chief Justice S.A. Bobde, Justice A.S Bopanna and Justice V. Ramasubramanian Citation: Interlocutory Application No.38048 of 2021 [Writ Petition(Civil) No.793 of 2017] Introduction It is a case of demanding basic amenities of life required for the survival of Rohingya Muslims who were refugees from Myanmar and took shelter in India due to fear of persecution. Relevant legal provisions The relevant legal provisions from the Constitution of India involved in the case are described here as follows: Article 14 - It states that "The State shall not deny to any person equality before the law or the equal protection of the laws within the territory of India”. Article 21 -It states that “No person shall be deprived of his life or personal liberty except according to a procedure established by law.” Article 19(1)(e) - It states that “Every citizen of India has the right "to reside and settle in any part of the territory of India." Article 51(c) - It states that “The State shall endeavour to foster respect for international law and treaty obligations in the dealings of organised people with one another; and encourage settlement of international disputes by arbitration” Section 2(A) of the Foreigners Act of 1946- It states that “foreigner” means a person who is not a citizen of India. Facts of the case The original case was presented before the court in the form of a writ petition by the respondent praying for the issue of basic human rights for the members of the Rohingya community who were taking refuge in India and who had registered themselves as refugees with the United Nations high commission for refugees. The application was presented seeking two main reasons - (a) For the release of detained refugees of the Rohingya community and (b) To direct the Union of India not to deport any Rohingya refugees that have been detained in the jails of Jammu. · Chandra Uday Singh, the counsel representing the rapporteur appointed by United Nations Human Rights Council put forward his submissions and objections were raised towards intervention by him. · The petitioners claim that both persons are Rohingya refugees who were originally based in Myanmar and they had to free their camp from Myanmar in December 2011 when brutal ethnic violence broke out in the country. Later, various persons were given shelter in different refugee camps all over the country, placed in New Delhi, Allahabad, Jammu, Haryana, and various other places. · A notice was issued by the Government of India via the Ministry of Home Affairs on 8th August 2017 to address to chief secretaries of all the states and Union Territories, advising them to sensitize all the intelligence agencies and agencies of law enforcement for taking prompt steps and to initiate deputation processes in their states or UTs. This circular compelled the petitioners to file the writ petition. Arguments Arguments by the Petitioner The petitioner claimed that more than 6500 Rohingyas are illegally detained and jailed in sub-jails which are also converted into holding centers for Rohingyas. These instances were reported in March 2021 in reputed news outlets like the Wire, the Indian Express, the Hindu and the Guardian. The petitioners in the main contention presented the following points : (a) Under article 21 of the Indian Constitution the principle of non-refoulement is also incorporated. (b) The fundamental rights guaranteed under Articles 14 and 21 of the Indian Constitution are even available to non-citizens also. (c) It was also mentioned that even though India is not a signatory to the UN convention on the status of refugees of 1951 but on the other hand India is a party to the Universal Declaration of Human Rights of 1948, International Covenant on Civil and Political Rights 1966, and convention on child rights of 1992 and therefore non-refoulment is a binding obligation upon India. It was also stated by the petitioner that India is also a party to the Protection of All Persons Against Enforced Disappearances and Convention Against Torture and Other Cruel and Inhuman Treatment or Punishment. According to the petitioners, Rohingyas were persecuted in Myanmar even when an elected government was in power and now the elected Government has been overthrown by a military coup and that therefore the danger is imminent. They strongly emphasize the judgment of the famous case of [1] where it was seen that the lives of the refugees are in danger if they are deported back due to mass killings of the Rohingyas in Myanmar. Arguments by the Respondent The Union of India put forward their arguments as discussed below: - A similar application challenging the deportation of Rohingyas from the State of Assam was dismissed by this court. Also, the persons are considered to be Foreigners under the Foreigners Act, 1946. Though Articles 14 and 21 are available to foreigners as well, the fundamental right to reside and settle in this country guaranteed under Article 19(1)(e) is available only to the citizens. They have also put forward the matter that since India has land borders with many countries, there is a continuous induction of illegal immigrants posing threat to the country. Moreover, India is not a signatory either to the United Nations Convention on the Status of Refugees 1951 or to the Protocol of the year 1967 and the principle of non-refoulment is applicable only to “contracting States”. Issue raised Whether the notice issued by the Union of India for the deportation of Rohingya refugees valid or does it infringe any rights of those persons? Judgment The court stated that India is not a signatory to the refugee convention. But, National courts can take inspiration from the International conventions till they do not conflict with Municipal law. It was also observed by the court that the fundamental rights guaranteed under Article 21 and 14 of the Constitution are available to everyone even though they are not the citizens of the country but the right not to be deported accompany the right to reside or settle in any part of the country which is guaranteed under Article 19 (1)(e) of the constitution. There were two serious allegations made by the respondents, the Union of India regarding the threat to the national security of the country and the migration of illegal immigrants due to open land borders. The court further states that it has already dismissed an application (I.A. No. 142725 of 2018) filed for a similar relief regarding Rohingyas' detail in the state of Assam. The court finally concluded that it was not possible to grant the relief which was prayed for. However, the court further added and made it clear that Rohingya refugees present in Jammu on whose behalf this application was filed shall be refrained from getting deported unless the proper procedure prescribed for such deportation is religiously followed. Hence, the interlocutory application was disposed of. Conclusion This case is also known as Rohingya’s deportation case. Irrespective of a foreigner or a citizen of the country, everyone deserves the availability of basic amenities of life required for their survival, on the grounds of humanity and morality. But according to the verdict, it was not possible on legal grounds. Precedent 1 The Gambia v Myanmar, ICJ GL No 178 (Official Case No) ICGJ 540 (ICJ 2020) Bibliography 1. Mohammad Salimullah and Anr- https://www.lawyersclubindia.com/judiciary/mohammad-salimullah-and-anr-vs-union-of-india-and-ors-right-not-to-be-deported-is-ancillary-to-fundamental-rights--5136.asp 2. Judgment- https://main.sci.gov.in/supremecourt/2017/27338/27338_2017_31_1502_27493_Judgement_08-Apr-2021.pdf