i. Supreme Court reserves judgment in Section 377 case: After four days of arguments, the Apex Court reserved its judgment on the validity of Section 377, IPC. On the last day, the religious groups, mainly Christian ones, and Suresh Kumar Koushal, who was party in the early proceedings, argued that Section 377 mainly criminalises sexual acts, and applies to all persons, not just to homosexuals. They also argued that right to privacy is not absolute, and one could not consent to commit an offence. On being asked repeatedly what constituted order of nature, the Defendants could not give a clear answer. [Navtej Johar & Ors. vs. Union of India, Writ Petition (Crl.) 76 of 2016, date of order: 17.07.2018]
ii. Supreme Court refuses to stay the new Tobacco Rules– The Supreme Court refused to stay the Cigarettes and other Tobacco Products (Packaging and Labelling) Second Amendment Rules, 2018. The rules mandate two images depicting cancer and carry textual warnings like ‘TOBACCO CAUSES PAINFUL DEATH’ and ‘QUIT TODAY CALL 1800-11-2356’ on the exact colour scheme as provided by the Government. The Petitioners argued that the rules suppressed the freedom of choice of a consumer. The Court, on the other hand, found the notification to be avlid by stressing on the need to make an informed choice by the consumer. [Cancer Patients Aid Association v Union of India, Special Leave Petition (Civil) No. 8786 of 2018, date of order: 16.07.2018]
iii. Supreme Court to examine the requirement of government sanction for registering an FIR against Army man – In a significant case involving the accountability of army for gross human rights violation, the Supreme Court would examine the question whether sanction from Central Government was required before registering a FIR against an Army personnel. The State of J&K contended that judicial precedents indicate that no such sanction was necessary, while the Union of India harped on such sanction, in view of Section 7 of Armed Forces (Jammu and Kashmir) Special Powers Act, 1990. The case arose in the context of an army man accused of firing on two protestors in Shopian, Kashmir, and a FIR sought to be registered by the victim’s father. [Vineet Dhanda v Union of India, Writ Petition (Criminal) No. 36 of 2018, date of order: 16.07.2018]
iv. Lateral entry into the post of joint secretaries challenged in the Supreme Court – A retired IAS officer has challenged the policy of the Central Government inviting lateral entries at the level of joint secretary in the Supreme Court. The Petition argues that appointments would be made to such high posts on a contract basis for three years and the fact that such persons may not have any experience relevant for such posts. Further, members of the civil service move up through the levels of positions in the government. The criteria mentioned in the advertisement were arbitrary and vague, according to the petition. Such entry would also by-pass the three stages of UPSC, which most personnel have to go trhough. [Chandrapal v Union of India, Writ Petition (Public Interest Litigation) No. 838 of 2018]
v. Judgement on reconsideration of Ismail Faruqui reserved – In the Ram Janmabhoomi matter, a three judge bench of the Supreme Court reserved its judgment on whether the judgment in Ismail Faruqui needs to be reconsidered by a higher bench or not. Senior Counsel Dr. Rajeev Dhawan has been asking for reconsideration of the 1994 judgment, which essentially held that praying in a mosque was not an essential practice for Islam and hence not constitutionally protected. Dr. Dhawan argued that the reconsideration of the question could not be barred by res judicata as the question was one of law. He also argued that the idea of comparative significance of a religious place between religions is misguided as it violates the basic tenets of secularism. He further challenged the judgment on the ground that the tenets of the Islamic faith and views of the community were not taken into account. [M. Siddiq v Mahant Suresh Das, Civil Appeal No. 10866-10867 of 2010, date of order: 20.07.2018]
vi. CJAR’s review petition dismissed in medical admission case – The Supreme Court has dismissed a review petition filed by Centre for Judicial Accountability and Reforms (CJAR) against dismissal of a petition requesting an SIT probe into the medical admissions scam. The NGO had argued that the judgment given by the court suffered from many errors apparent on the face of law. The most glaring error was, according to the petition was that the judgment had said that the investigation would not involve judges and hence judicial independence would not have been compromised. But the FIR registered was such that CBI would have to look into to gauge the involvement of the named judges and whether the accused were using the name of the judges to only earn money for themselves. [Campaign for Judicial Accountability v Union of India, Review Petition (Criminal) No. 135/2018 in Writ Petition (Criminal) No. 169/2017, date of order: 11.07.2018]
vii. Single Mothers cannot be forced to disclose the name of the fathers for birth certificates – The Madras High Court has held that single mothers cannot be forced to disclose the name of the fathers of the children when applying for birth certificate. The Court noted that women in many circumstances are forced to raise children with their own resources, in view of unconcerned partners and such women cannot be forced to declare the name of the fathers. In the instant case, the mother had undergone insemination from a donor who was not her husband. The Court recognised the right to privacy of the donor as the child was conceived by intra-uterine fertility treatment. The Court further observed that the particular law did not require the disclosure of the name of the father specifically and the name of the mother would suffice if the child was born from her womb. [Mathumitha Ramesh v Chief Health Officer [Writ Petition (Madurai) No. 8319 of 2018, date of order: 11.06.2018]
viii. Permanent custody of children cannot be ordered under Domestic Violence Act–The Bombay High Court held that the permanent custody of a child cannot be ordered under the Protection of Women from Domestic Violence Act. The Additional Sessions Judge had awarded the custody of the child to the mother during the summer holidays while directing the father to ensure that the children could meet the mother during other holidays as well, even after the pending application would be disposed off. The High Court by looking at the language of the section, rather interpreted the relevant section, Section 21 of the PWD Act, as meaning that the order would have force only for the period of disposal of the application, and the law cannot be interpreted liberally. [Sham v Sau Yogita, Criminal Revision Application No. 133 of 2014, date of order: 03.07.2018]
ix. Proceedings in the challenge to the validity of marital rape exemption continue– During the hearing of the petitions demanding the criminalisation of marital rape, the Delhi High Court observed that marriage did not give an all pervasive licence to the husband to demand sex from the wife. The petitions have been filed by the All India Democratic Women’s Association and a marital rape victim. This was in response to submissions made by the NGO Men Welfare Trust stating that the criminalisation would serve as a tool to harass men. They further argued that wives already have protection from sexual violence under the PWD Act. This was also rejected by the Court noting that the law excludes marital rape from the meaning of rape as such. [All India Democratic Women’s Association v Union of India, Writ Petition (Civil) No. 6024 of 2017, date of order: 17.07.2018]
IPA Service)
Prepared by Amritananda Chakravorty (amritananda.c@gmail.com) and Mihir Samson (mihirsamson@gmail.com), Delhi based practicing Advocates.
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