i. Constitution bench hears arguments on decriminalisation of adultery –The Supreme Court has begun to hear arguments on the constitutional challenge to the offence of adultery. The Petitioners argued that Section 497, which penalises a man for having sexual relationship with a married woman with imprisonment up to 5 years, was violative of the right to equality, non-discrimination, privacy, dignity and autonomy of women. The offence of adultery is rooted in the old Victorian norm of women being the ‘chattel’ or property of husbands, and a man having a relation with a married woman is, in fact, encroaching into the ‘property’ of husbands. The law further provides that if the husband consents or connives, then no offence is made out, which further perpetuates the notion of women being ‘objects’ and not ‘subjects’ of their own decisions. At the same time, the Petitioners argued that a married man having relationships outside marriage also constitutes adultery, but it is not punishable in law. In any case, adultery is a ground for divorce in most personal laws, i.e., Hindus, Muslims, Christians, Parsis, etc. [Joseph Shine vs. Union of India, Writ Petition (Criminal) No. 194 of 2017, date of order: 02.08.2018]
ii. Plan to set up a ‘Social Media Hub’ dropped by Centre-After a huge furore, including a petition being filed in the Supreme Court challenging the decision of the Central Government to set up a ‘social media hub’ to monitor the social media activities of the citizens, the Attorney General submitted in the Court that the Centre was dropping the said plan. A tender was in the process of being floated for the same. The hub would have been a portal for the government to keep an eye on the digital engagements of the citizens and the personnel employed would act as the eyes and ears of the government. After AG’s submission, the Court dismissed the petition as infructuous. [Mahua Moitra vs. Union of India, Writ Petition (Civil) No. 782 of 2018, date of order: 03.08.2018]
iii. Bank accounts and properties of the Amrapali Group attached – The Supreme Court has ordered the attachment of all bank accounts and the properties of all the 40 firms of Amrapali group. It also ordered the freezing of the bank accounts of all the directors of the firm. Amrapali had tried to divert its funds to the tune of Rs. 2,700 Cr and so sought the details of the transactions of the group. The Court then ordered Secretary, Ministry of Urban Housing and Development and Chairman, National Buildings Construction Corporation to proceed with the construction of the remaining part of 12 projects. Amrapali has been asked to deposit Rs. 250 cr to pay to the co-developers to complete the projects. [Bikram Chatterji v Union of India, Writ Petition (Civil) No. 940/2017, date of order: 01.08.2018]
iv. Review petition in Judge Loya’s case dismissed – As expected, the Supreme Court has dismissed the review petition filed by the Bombay Lawyers Association to review and recall the judgment of the Supreme Court denying a probe into the death of Judge Loya in November, 2014.The review petition was heard by the same bench that had dismissed the petition in the first place. The bench found no reason to interfere with the matter. BLA had challenged the judgment arguing that the Supreme Court had erred in relying on the testimony of the District Judges and the inquiry report by the Government of Maharashtra. The latter was the only basis of the submissions put forth by the State yet it was not supported by any affidavit. [Bombay Lawyers Association v Registrar General, Bombay High Court, Review Petition (Criminal) No. 396 of 2018, date of order: 31.07.2018]
v. The practice of female genital mutilation challenged in the Supreme Court– The Supreme Court is currently hearing a challenge to the practice of female genital mutilation prevalent amongst Dawoodi Bohra community in India. The petition filed by an advocate Sunita Tiwari seeks a complete prohibition on such practice, on the basis that it violates the fundamental rights of women. Countering the claim that the practice is an essential religious practice, Senior Advocate, Indira Jaising, pointed out that a practice that has been declared criminal cannot be protected by the Constitution. Further, those living in countries like the UK and Australia where it has been banned have also accepted the law of those countries. The act of mutilation would be a criminal act under POCSO and IPC. [Sunita Tiwari vs. Union of India, Writ Petition (Civil) No. 286 of 2017, date of order: 31.07.2018]
vi. Denial of maternity leave for third child held unconstitutional – The Uttarakhand High Court struck down a rule of the U.P. Fundamental Rules, adopted by the State of Uttarakhand, that the maternity leave would be denied for the birth of the third child. The petitioner herein had been denied maternity leave for her third pregnancy. The Court found the provision would be liable to be struck down, in light of provisions of the Maternity Benefit Act, 1961 which gives it primacy in cases of conflict with other laws. Further Article 42 of the Constitution asks the State to ensure humane conditions of work and for maternity relief. [Urmila Masih v State of Uttarakhand, Writ Petition No. 1778 of 2015, date of judgment: 30.07.2018]
vii. State Government criticised for registering multiple FIRs against certain individuals in Anti-Sterlite protests – The Madras High Court criticised the state government and the local police for registering multiple FIRs spanning across various Acts and provisions against a handful of individuals in relation to the Sterlite protests. The Court stated that the same was clearly an attempt by the State to scare away the protesters and the local residents from protesting against the plant. It even called the State uncaring and oblivious to manner in which it was conducting itself. 85-100 FIRs were registered against individuals who were a part of the protests at Sterlite plant. [A. John Vincent v Government of Tamil Nadu, Writ Petition (Madurai) Nos. 15421 and 15660 of 2018, date of order: 02.08.2018]
viii. All live in relationships cannot be covered under the Domestic Violence Act – The Bombay High Court has held that for a live in relationship to be covered under the Domestic Violence Act, it has to be in the nature of marriage. In the present case, the petition had married someone, but because disputes arose, the parties ended their marriage by customary divorce. The petitioner then converted to Islam to marry the respondent in this case. This marriage also ended in a divorce and a claim under the DV Act was filed. The Court, after looking at the facts, held that the relationship in question could not be covered under the Domestic Violence Act. The parties are required to appear in public as spouses, they should be of the legal age to marry and should not have living spouses and should have voluntarily cohabited. [Reshma v State of Maharashtra, Criminal Revision Application No. 82/2017, date of judgment: 25.07.2018]
ix. Revisions to minimum wages by the Delhi Government quashed: The Delhi High Court set aside the two notifications issued by the Government of NCT revising the minimum wages of all employees in the scheduled employment under the Minimum Wages Act, 1948. The High Court held that the Advisory Committee had failed to take all relevant materials into account, and the decision suffered from complete non-application of mind. Stakeholders like Delhi Factory Owners’ Federation, New Delhi Traders’ Association, etc who had challenged the notifications, i.e., the ‘employers’ were not heard, and even questioned the constitution of the Minimum Wages Advisory Committee. [Federation of Okhla Industrial Association vs. Lt. Governor of Delhi, Writ Petition (Civil) No. 8125 of 2016, date of decision- 04.08.2018]
Other Legal Developments –
Justice K.M. Joseph finally elevated to the Supreme Court – After the Supreme Court reiterated its recommendation for elevation of Justice K.M. Joseph, the Central Government had no choice, but to accept it. Accordingly, the Ministry of Law and Justice has issued a notification appointing three judges to the Supreme Court, including Justice Indira Banerjee, Justice Vineet Saran and Justice K.M. Joseph. The Government also notified the recommendations for Chief Justices of several High Courts, including Justice Gita Mittal for the High Court of Jammu & Kashmir, and the High Courts of Kerala, Patna, Madras, Orissa, Jharkhand and Delhi.
IPA Service)
Prepared by Amritananda Chakravorty (amritananda.c@gmail.com) and Mihir Samson (mihirsamson@gmail.com), Delhi based practicing Advocates.
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