ECI Objects to PIL Sayan Banerjee v. The Election Commission of India and Ors on the grounds of maintainability

The Election Commission of India issued a notification according to which in 159-Babanipur Assembly Constituency, the by-elections would be conducted on 30^th September. The fact that the special request was received from the Chief Secretary, Government of West Bengal was also highlighted. The statement by Election Commission of India specified that while all other constituency by-elections were not being held, the by-elections would be held based on the request of Chief Secretary, Government of West Bengal.

A Public Interest Litigation (Sayan Banerjee v. The Election Commission of India and Ors)has been moved challenging this decision of the Election Commission of India. This plea was filed by Sayan Banerjee, through Advocate Ankur Sharma with the view that holding such by-elections is unreasonable considering the Covid-19 situation and that fact that it unreasonable of the Chief Minister to interfere with the free and fair democratic system. The plea further alleges that the reason behind this request is create a situation to favour the Chief Minister of the State (Mamata Banerjee) to save her from the from the constitutional consequence under Article 164(4) of the Constitution of India, 1950.

Article 164 (4) of the Indian Constitution states that: ‘A Minister who for any period of six consecutive months is not a member of the Legislature of the State shall at the expiration of that period cease to be a Minister’

The PIL prays for an interim order of injunction in respect of the Memo dated 04/09/2021 issued by the Election Commission of India in respect of Bhabanipur Assembly Co and for the quashing of the memo dated 04.09.2021 issued by the Election Commission of India and all subsequent action/actions taken on the basis of the said decision in respect of 159 Bhabanipur.

According to the most recent development in this matter, the Election Commission of India has challenged the maintainability of this Public Interest Litigation. advocate Sidhant Kumar for the defendants argued that pursuant to Article 329 of the Constitution no petition regarding electoral matters can be entertained by the Court until the declaration of the election results.

Article 329 of the Indian Constitution: ‘Bar to interference by courts in electoral matters Notwithstanding anything in this Constitution

(a) the validity of any law relating to the delimitation of constituencies or the allotment of seats to such constituencies, made or purporting to be made under Article 327 or Article 328, shall not be called in question in any court;

(b) No election to either House of Parliament or to the House or either House of the Legislature of a State shall be called in question except by an election petition presented to such authority and in such manner as may be provided for by or under any law made by the appropriate Legislature.’

Bombay HC to hear plea against Maharashtra State’s decision to permit only persons with double vaccination to enter certain places/ use local trains

A petition was filed by Activist FerozeMithiborwala before the Bombay high Court against Maharashtra government’s decision which permitted only those people who have been fully vaccinated for Covid to use local trains, visit malls and workplaces.

The under Secretary and the Chief Secretary of the state issued a Standard OperatingProcedure on the 10^th and 11^th August which prohibited those who hadn’t taken both the vaccines from travelling in local trains or visiting malls or workplaces. They added that it was mandatory for shops, offices and other places to ensure that their staff had taken both the doses as well by 15^th August.

The petitioner stated that these circulars were discriminatory towards those who hadn’t taken vaccination under Articles 14, 19 and 21 of the Constitution.

Art.14: Equality before law The State shall not deny to any person equality before the law or the equal protection of the laws within the territory of India Prohibition of discrimination on grounds of religion, race, caste, sex or place of birth

Art 19: Protection of certain rights regarding freedom of speech etc:

(1) All citizens shall have the right

(a) to freedom of speech and expression;

(b) to assemble peaceably and without arms;

(c) to form associations or unions;

(d) to move freely throughout the territory of India;

(e) to reside and settle in any part of the territory of India; and

(f) omitted

(g) to practice any profession, or to carry on any occupation, trade or business

Art.21: Protection of life and personal liberty No person shall be deprived of his life or personal liberty except according to procedure established by law.

He added that getting vaccinated is a choice of the public in accordance to the centre’s answer in the Lok Sabha on the 19^th of March 2021. In the petition it was also stated that the SOP had also not considered those who had covid and have developed anti-bodies which is more effective than the vaccine derived immunity.

The petitioner relied on various High Court judgements from different states which had ruled that vaccine cannot be made mandatory. It was added in the plea that before the pandemic Delhi and Kerala HC had ruled that vaccines cannot be made mandatory.

The activist in his plea had prayed for an appropriate action to be taken against the officers of the state of Maharashtra as per the provisions of National Disaster Management Act as well as IPC and that all people within the Mumbai metropolitan region be allowed to use local transportation irrespective of the vaccination.

Domestic abuse – rights of victim and laws involved

Section 498-A of the Indian Penal Code covers dowry-related harassment. Likewise, provisions of criminal law, a woman can utilize the threat of going to court to prevent this sort of harassment. The Indian Penal Code additionally addresses dowry deaths in section 304-B. If there is death of a woman because of “unnatural causes” within the seven years of her marriage and has been harassed for dowry before her death, the Courts will assume that it is a case of dowry death. The spouse or in-laws will then, at that point need to prove that their harassment was not the cause of her passing. Dowry death is punishable by imprisonment of at least seven years. When filing an FIR (First Hand Report), in a case where a woman is suspected that she has been murdered after a history of torture and abuse because of dowry demands, the complaint should be filed under section 304-B rather than under section 306, which deals with abetment to suicide. Section 306 should be invoked when a woman commits suicide because of dowry-related harassment.

The rights of victims against domestic violence include:

1. The right to be reasonably protected from the accused refers to having separate waiting areas and/or report times for court. It does not afford police protection in your home or elsewhere.
2. The right to reasonable, accurate, and timely notice of any public court proceeding, or any parole proceeding, involving the crime or of any release or escape of the accused. Court staff will notify you of court proceedings, but you’ll need to remember to update the court anytime your contact information changes so they can do so.
3. The right not to be excluded from any such public court proceeding, until and unless the court, after getting a clear and convincing evidence, comes to a conclusion that testimony by the victim would be materially altered if the victim heard other testimony at that proceeding. This states that you have all the right to be present during the court proceedings unless the judge thinks that hearing the testimony of other witness might make changes in your perception of the incident, in which case the judge might have you sequestered until after you give your testimony.
4. The right to be reasonably heard at any public proceeding in the district court involving release, plea, sentencing, or any parole proceeding. This gives you the option to provide a written victim impact statement or to speak in court before the judge deciding on a punishment.
5. The reasonable right to confer with the attorney for the government in the case. This allows to meet with the prosecutor about your case.
6. The right to full and timely restitution as provided in law. Restitution is paid to cover the costs the victim incurred related to the crime. Restitution might be given for medical bills, counselling costs, lost wages, stolen property, and more. It does not cover “pain and suffering” or other damages. Those are managed in civil court.
7. The right to proceedings is free from unreasonable delay. Victims have the right to speedy trials, too. Unfortunately, case backlogs and staffing issues mean courts must take liberty with the term “unreasonable delay.”
8. The right to be treated with fairness and with respect for the victim’s dignity and privacy. This one shouldn’t have to be stated, but it does.

In 1983, domestic violence was recognized as a specific criminal offense by the introduction of section 498-A into the Indian Penal Code. This section deals with cruelty by the spouse or his family towards a married woman. Four types of cruelty that are dealt with by this law are:

• conduct that is likely to drive a woman to suicide,
• conduct which is likely to cause grave injury to the life, limb, or health of the woman,
• harassment to force the woman or her relatives to give some property, or
• harassment because the woman or her relatives is unable to yield to demands for more money or does not give some property.

The punishment is imprisonment for up to three years and a fine. The complaint against cruelty need not be lodged by the person herself. Any relative may also make the complaint on her behalf.

Two Lawyers held for contempt of Court by the Madras High Court

In the year 2020 a writ petition was filed accusing Ms. Poornima, the then High Court registrar, of not passing 12^th Standard.A Bench consisting of Chief Justice Sahi and Justice Sethilkumar found that the allegation was false thereby dismissing the petition.

The first bench found the Advocate B Sathish Kumar, the advocate who moved the plea, guilty of contempt of court thereby imposing him of a fine of Rs. 5 lakhs.

Sathish Kumar then filed an affidavit apologising and mentioning that he moved the plea due to the insistence of his seniors, Vasudevan.

When he was questioned the senior denied the allegations however the court remained unconvinced. It was later discovered that Vasudevan had paid the cost imposed of Kumar by the first bench.

A bench of justice PN Prakash and RN Manjula took up the matter of High Court of Madras v. B. Satish Kumar and Ors. on the reference made by a bench headed by the Chief Justice.

The passed an order on 27^th August 2021 stating that they were completely satisfied with the fact that the two lawyers had acted together and plotted a devious plan thereby manufacturing a frivolous affidavit which was a calculated move to not only force out the then registrar but also bring down the prestige of the High Court. The bench added that the lawyers circulated the petition in the press even before it was admitted before the court. They added that this led to bringing the administration of court before the public eye and thereby dishonouring the institution.

The court expressed its displeasure towards this action of the lawyers. The bench then stated that being the officers of the court it was their additional responsibility to avoid situations which would damage the honour of the society as it is the very institution which gives them their identity.

The Court concluded that both advocates Sathish Kumar and Vasudevan were guilty of contempt of Court on charges earlier framed under Section 2(c)(iii) of the Contempt of Courts Act, 1971and Section 2(c)(i) read with Section 12(1). The court imposed a fine of Rs. 2000 for each charge thereby a total of Rs. 6000 for the three charges and added that if he defaulted this, he would have to go through a simple imprisonment of one week for each charge.

Once the payment was made Kumar would be allowed to resume his High Court practice. This sentence was given after taming into consideration that he belonged to a poor family along with which he had apologised and had already been slapped with a payment of Rs. 5 lakhs as cost.

Vasudevan on the other hand because was not apologetic for his actions he was sentenced to undergo imprisonment for one month for each charge along with Rs. 2000 for each charge summing up to 3 months of imprisonment and a fine of Rs. 6000. Along with this he was barred from practicing before the High court for a period of one year. The case was then dismissed.

The SC states that the High Courts not to pass oral orders against stay of arrest

Approaching the Gujrat High Court, an Accused in the case of SalimbhaiHamidbhai Menon vs. NiteshkumarMaganbhai Patel pleaded for quashing of FIR lodged against him Sections 405, 420, 465, 467, 468 and 471 of the Indian Penal Code 1860. The Accused did so by filing a petition u/s 482. While this petition was pending, the Accused Person was arrested. However, the Gujrat High Court directed to release the Accused when the proceedings of these petitions began. This order was an oral one and was not noted down in the final judgement.

S.482 of IPC states that:

‘Saving of inherent powers of High Court. Nothing in this Code shall be deemed to limit or affect the inherent powers of the High Court to make such orders as may be necessary to give effect to any order under this Code, or to prevent abuse of the process of any Court or otherwise to secure the ends of justice.’

This means that as per S.482 of IPC, High Court have the power to take steps and give orders that are necessary to take actions under the IPC. The Supreme Court noted that the Gujrat High Court did in fact have complete power and jurisdiction to hear the case. The Supreme Court further stated that the HC also has to power to stay the arrest of Accused Persons u/s 482 however, it has to be done in writing.

The Supreme Court explained that Oral Orders for stopping arrest instead of written ones not only reduce judicial accountability but also set dangerous precedents for other courts to follow. Written Orders are important in case of stay on arrest of Accused because the reasons for such a stay have to be clearly mentioned and explained in writing for purposes of reasoning and fair decision-making.

Accepting the Appeal, the Supreme Court also stated:

‘The Court must reflect an application of mind to relevant facts and circumstances, including:

• The nature and gravity of the allegations;
• The seriousness of the alleged offence(s);
• The position of the accused and the likelihood of their availability for investigation; and
• The basis on which astay of arrest has been granted till the next date.’

Chhattisgarh High Court declares non-consensual sexual intercourse between husband and wife is not a criminal offense

Order of the Addl. Sessions Judge, Bemetara, Distt. Bemetara which framed charges of Sections 498-A, 34, 376 and 377 against Dilip Pandey and others was challenged in the High Court of CHHATTISGARH. According to the brief facts of the case, the applicant and original complainant were married and after a few days of marriage, the applicant was said to have demanded dowry from the wife and also had subjected her to cruelty. The Complainants also states that the husband (applicant) forced physical relations on the wife and further also forced her into unnatural sexual intercourse. Following this, written complaint was filed against the applicants in Bemetara Police Station and a charge sheet under Section 498-A, 377, 376, 34 of the I.P.C. was filed against the applicants. The court framed charges against the applicants and hence aggrieved by this they approached the High Court of CHHATTISGARH. 

The Applicants argued that S.376 which provides for Punishment for Rape is not a valid charge on the applicant since the applicant was lawfully married to his wife and u/s 375 which defines rape and its exceptions, there is no provision which make marital rape a crime. Hence, even if the sexual intercourse was without consent, it would not constitute as rape. The High Court agreeing with this argument stated that since the couple was lawfully married and the wife was above 18 years, the charges of rap would not be valid.

As for the charge of S. 377, it was argued by the applicants’ counsel that the element of ‘voluntarily’ carnal intercourse is an important element and since that was not present, S. 377 does not apply either. The High Court disregarded this argument and held that the wife repeatedly mentioned that the applicant (husband) had unnatural sex with her using his fingers and radish which she was ashamed to admit earlier and hence, the court held that this charge would not be invalidated. 

The court also held that he charges of S.498-A against the applicant was also not invalid. In the explanation the High Court mentioned that statements of the complainant show that after few days of marriage, the wife was subjected to cruelty by all the applicants by abusing her and demanding dowry, the statement of the neighbours also verified these facts. 

In conclusion, it can be stated that Marital Rape is still not recognised as an offence in India, and non-consensual sexual intercourse between husband and wife is not a criminal offense.

Magistrate Court Grants Bail to Union Minister Narayan Rane in Defamation case

Union Minister Narayan Rane was alleged to have defamed Chief Minister of Maharashtra Mr. Uddhav Thackeray for which he was arrested by Maharashtra Police as an FIR was lodged against him. Magistrate Court at Mahad in Raigad district of Maharashtra has granted bail to the Union Minister Narayan Rane after furnishing bail of Rs. 15,000/- in the present case.

Union Minister Narayan Rane was alleged to have defamed Chief Minister of Maharashtra Mr. Uddhav Thackeray and was arrested for the same by Maharashtra Police. The First Information Report lodged against him stated that Union Minister Narayan Rane made derogatory remarks about Chief Minister of Maharashtra. Similar FIRs have been observed against Mr. Narayan Rane in the past u/s 500, 153A and 505 (2) of the Indian Penal Code 1860. 

S.500: This section of the IPC lays down the punishment for Defamation, the definition of which is provided for u/s 499 of IPC i.e., ‘Whoever, by words either spoken or intended to be read, or by signs or by visible representations, makes or publishes any imputation concerning any person intending to harm, or knowing or having reason to believe that such imputation will harm, the reputation of such person, is said, except in the cases hereinafter expected, to defame that person.’

S.505 (2): S.505 refers to statements that may lead to public mischief under which sub-clause 2 refers to Statements creating or promoting enmity, hatred or ill-will between classes. The punishment for the same is also prescribed under this section as imprisonment which may extend to three years, or with fine, or with both.

S. 153A: This section refers to Promoting enmity between different groups and prescribed the punishment for the same as imprisonment which may extend to three years, or with fine, or with both. This promotion of enmity may be based on the grounds of religion, race, place of birth, residence, language, caste or community or any other ground whatsoever.

Magistrate Court at Mahad in Raigad district of Maharashtra has granted bail to Union Minister Narayan Rane after furnishing bail of Rs. 15,000/- in the present case on the grounds that; S. 500 of IPC would not fall in effect as it was a non-cognisable offence and not filed by victim himself & that Mr. Rane’s health conditions made him vulnerable. It was also argued in Mr. Rane’s defense that all offenses made against Mr. Rane were punishable for less then 7 years and hence no custody was necessary.

Bombay High Court denies petition by Raj Kundra, held that accused cannot indulge in destruction of evidence after service of notice under Section 41A of CrPC.

A petition was filed in the High Court of Bombay by Counsel for Raj Kundra and his accomplice Ryan Thorpe under Article 227 of the Constitution and under Section 482 of the CrPC, 1973 for release from custody.

The facts of the case are that a notice under Section 41A (1) of Cr.P.C. was served upon the Petitioners and they were called upon to attend the office of the investigating agency but the petitioner refused to accept the notice. After that the petitioners were taken to the office of the investigation agency and later on arrested. Subsequently they were produced before the Additional Chief Metropolitan Magistrate, who remanded them. It was also alleged that the petitioners tried to disturb the investigation by deleting evidence.

The Counsel for the petitioner submitted that in pursuance of the case Joginder Kumar v State of UP, Section 41A was introduced by the Parliament in 2010 and said Section applies where arrest of a persion is not required under Section 41(1). The Counsel argued that notice under Sectoin 41A was never served upon by the petitioner and therefore Section 41A (4) applies and the police needed to have taken orders from the Magistrate before arresting the petitioner.

Further relying on Arnesh Kumar v State of Bihar, the Supreme Court had issued directions wherein the police were obliged to give notice of 2 weeks for appearance in terms of Section 41(A) of the Act.  Moreover in the case of Munawar v State of Madhya Pradesh, the Court released the accused on ad-interim bail for non compliance of the procedure in Section 41 of CrPC.

Mr. Chandrachud, learned counsel appearing for the Petitioner Ryan Thorpe submitted that, his client had accepted notice issued by the police under Section 41A of Cr.P.C. and therefore Section 41A (3) of Cr.P.C. would come in operation. He submitted that, Section 41A (3) of Cr.P.C. requires that such a person cannot be arrested in respect of the offence referred to in the notice, unless for the reasons to be recorded that he ought to be arrested. Without granting an opportunity to the petitioner to comply with the said notice, he has been directly arrested and therefore, his arrest is bad in law. 

The Counsel for the respondent argued that after service of notice under Section 41A of CrPC, it is expected under the law that the accused would cooperate in the process of investigation and not to indulge into destruction of incriminating material/evidence against him/her, which the investigating agency intends to seize or to take it into its custody for the purpose of investigation of a crime.

The Court ruled that the arrest and remand of the petitioner is within law, and that the order passed by the Magistrate does not suffer from any error, therefore, petitions were dismissed.

Delhi High Court could not answer whether a lower Court is bound by the decision of Supreme Court when the same has been referred to a larger bench by another Supreme Court bench of equal strength.

In the case of Bhagwati Devi Gupta v Star Infratech Pvt. Ltd., the Delhi High Court was faced with the question of the validity of an arbitration clause when the agreement is invalid on the grounds of not having paid stamp duty. The Court considered multiple judgements but when faced with two contradicting Supreme Court judgements of equal strength, decided to not adjudge upon it and referred the case to the Arbitrator, leaving for him to decide the same.

The petition was filed under Section 11(5) of the Arbitration and Conciliation Act, 1996. The dispute related to the appointment of the arbitrator. Since both the parties could not agree upon one arbitrator, they decided to approach the abovementioned Court.

The learned Counsel for the Respondent had raised the objection that the agreement between the parties is inadequately stamped. He has relied on the judgment of the Supreme Court in N.N. Global Mercantile Pvt. Ltd. v. M/s Indo Unique Flame Ltd. to contend that, till this defect is rectified, the Court cannot refer the dispute to arbitration. On the other hand, the Counsel for the petitioner submits that the arbitration agreement is not insufficiently stamped and that, even if it were, this aspect could be decided by the learned Arbitrator.

The judgment in N. N. Global Mercantile is of import here. It states that “On the basis of the doctrine of separability, the arbitration agreement being a separate and distinct agreement from the underlying commercial contract would survive independent of the substantive contract. The arbitration agreement would not be rendered invalid even if the substantive contract …cannot be acted upon on account of non-payment of Stamp Duty.”

On the other hand, a three Judge Bench of the Supreme Court held in Vidya Drolia v Durga Trading Corporation that “Existence and validity are intertwined, and arbitration agreement does not exist if it is illegal or does not satisfy mandatory legal requirements. Invalid agreement is no agreement.”

Therefore, the Court was in a dilemma that if once a bench of the Supreme Court has doubted the correctness of an earlier bench of co-equal strength and referred the issue to a larger bench, whether Courts of lower hierarchy should continue to follow the earlier decision.

The Counsel for the Respondent agreed to refer the dispute to an Arbitrator. The Court held that an Arbitrator would be appointed and would decide upon the consequences of non-stamping of the agreement. The petition stood disposed.

Second Marriage after Divorce does not come under the definition of Domestic Violence under the Protection of Women from Domestic Abuse Act, 2005.

In an appeal filed before the Bombay High Court to quash proceedings under Protection of Women from Domestic Abuse Act, 2005 in the subordinate judiciary, the Court allowed the appeal and quashed the said proceedings and other related proceedings, on the ground that second marriage after a valid divorce cannot be taken as a cause of action for Domestic violence.

The facts of the case are pertinent to the conclusion drawn by the Court. The facts are that the Appellant and the Respondent got married in 2011 but due to discord in the relations filed for divorce in the Family Court a few years later. The divorce was granted to the Appellant on the ground of cruelty towards him. Moreover, an application for restitution of conjugal rights filed by the Respondent was denied in the impugned judgement. 

This order was challenged before the High Court and the Supreme Court, all of which upheld the divorce. The Special Leave Petition filed by the Respondent were denied in the Supreme Court.

After dismissal the Respondent filed a case under Section 12 to 23 of the Protection of Women from Domestic Abuse Act, 2005 with allegations similar to those made in the proceedings pertaining to the divorce decree and the application for restitution of conjugal rights. She claimed that the Appellant had performed cruelty by solemnizing a second marriage. The Respondent therein demanded monthly maintenance, compensation, residence order and other monetary relief.

The Appellant approached the High Court praying for quashing of the proceedings in the Family Court. The Court thereafter stayed the proceedings until further orders. The Counsel for the petitioner submitted that the proceedings initiated by the Respondent were untenable since same facts and incidents that were referred to and relied upon in the earlier set of proceedings pertaining to the divorce decree and rejection of the application for restitution of conjugal rights, were relied upon in the said application. It was also submitted that performing a second marriage could not be an incident for which the respondent could invoke provisions of the D.V. Act.  

The Court held that contentions alleged by the respondent had been considered and decided by the Family Court and that the findings had attained finality up to the Supreme Court. Therefore, the Respondent cannot be permitted to reiterate the same by filing application under the provisions of the D.V. Act, three months after the Supreme Court dismissed her Special Leave Petition.

The Court further held that Section 3 of the D.V. Act defines ‘domestic violence’ in an elaborate manner and it refers to physical abuse, sexual abuse, verbal abuse, emotional abuse, and economic abuse. It is in the context of a domestic relationship shared between the aggrieved person and the respondent. Merely because the Applicant performed a second marriage cannot come within the definition of Domestic Violence.

Thereby appeal was allowed.