CRPF SOLDIER MISSING FOR MORE THAN 7 YEARS CONSIDERED TO BE DEAD

In the case of Madhu Devi v. Union of India, decided by the J&K High Court, the petitioner, Madhu Devi, through a Writ of Certiorari pleaded to quash the order declaring her missing husband as a ‘deserter’ and pleaded to declare him as dead under Section 108 of the Indian Evidence Act which states that the burden to prove that a person is alive who has not been heard of for 7 years is on the person who he/ she naturally communicated with; but if such persons have not heard then the burden shifts/ is upon the person who affirms it. The petitioner’s husband, namely Asha Ram, was serving as a head Constable in 16 Battalion CRPF and was last posted at Civil Lines Mathura, UP. Mr. Asha Ram was putting up a residential quarter at the Group Centre of the said Battalion at Ban Talab, Jammu. In June 2010, the petitioner got a phone call from the Company Commander of the Unit informing her that her husband had gone to fetch some vegetables, however he did not return back. The petitioner, individually, and the respondents tried to reach CRPF but no trace was found. The respondents halted the salary of the petitioner and the whole burden of rearing the children was put on Madhu Devi. The petitioner contended that she was out of touch with her husband for 7 years and the respondents had dismissed him from job stating him to be a “deserter”. Desertion or aiding in desertion is an offence as per Section 38 of the Army Act, 1950. However, the single bench led by Justice Sanjay Dhar ordered that a Central Reserve Police Force (CRPF) soldier missing for the last seven years can be presumed to be dead in terms of Section 108 of the Indian Evidence Act and hence, the Court directed the CRPF authorities to give all consequential benefits to the family of the missing person. The Court opined that the petitioner’s husband cannot be stated as a deserter as the word ‘desert’ would mean– “illegally running away from military service. A person, whose whereabouts are unknown and who has not been heard of for the last more than 10 years, cannot be stated to have illegally run away from his service.” The petitioner’s husband is presumed to be dead because his whereabouts have remained unknown for more than seven years, as such, he cannot be held guilty of having deserted the service of CRPF. The Court ordered the respondents to release all service/pensionary benefits towards the petitioner’s husband as the respondents were wrong in terming Mr.Asha Ram a deserter just on the benefit of doubt. Mr. Asha Ram being untraceable nowhere proves that he illegally abstained from his duty. In the case of Madhu Devi v. Union of India, the petitioner’s husband being untraceable for 7 years has lost all the civil rights and thus he can be considered to have a civil death too. Hence, the judgement can be seen as an application of law in favour of the partners or family of such officers by financially benefiting and supporting them. However, an ambiguous question can arise as to what will happen if and when the person so declared to be dead appears after the date of such declaration?

ARE WOMEN IN INDIAN NAVY ELIGIBLE FOR PERMANENT COMMISSION?

In the year 1992, women were inducted in the Indian Navy for the first time through a special entry scheme, after which the Short Service Commission (SSC) was introduced. Although initially women were inducted only in some selected branches, over the years it has expanded. Recently, in the case of Union of India & Ors. v. Lt Cdr Annie Nagaraja & Ors. (2020) the Supreme Court of India has upheld that women employed in the Indian Navy through the SSC are eligible for Permanent Commission (PC) i.e., they can serve till their retirement. In SSC, the tenure is of 10 years, while with an extension of 4 years, Navy officers can be eligible for Permanent Commission. The verdict can be seen as a step towards establishing the Right to Equality granted under Article 14 of our Constitution. It can be observed that this judgement was inspired by the Supreme Court’s decision in the case of The Secretary, Ministry of Defence v. Babita Puniya & Ors. (2020), where the Court dismissed the Central Government’s submissions that women are physiologically weaker than men as a “sex stereotype” and held that SSC women officers are eligible for Permanant Commission and Command Posts in the Indian Army irrespective of their service years.In the present case of Union of India & Ors. v. Lt Cdr Annie Nagaraja & Ors. (2020), the Supreme Court gave the judgement based on a plea filed by 17 women SSC officers in the Navy who were denied Permanent Commission and were discharged despite completing 14 years of service as SSC officers. While making a decision in this case the Court made the following observations:“Women officers have worked shoulder to shoulder with their men counterparts in every walk of service. Therefore, the ‘101 excuses’ devised by the government, including motherhood and physiological limitations, reeked of a stereotypical mindset.And women naval officers cannot be denied the right to equal opportunity and dignity entitled to them under the Constitution of India on specious grounds such as physiology, motherhood and physical attributes.”The Supreme Court of India gave a deadline of 3 months for its judgement on granting Permanent Commission to women SSC officers in the Indian Navy to be implemented, but later it extended the deadline to December 31, 2020, for implementation of this judgement considering the COVID-19 pandemic since the Centre moved the plea asking for an extension in June 2020. On 30th December 2020, the Supreme Court of India decided to hear a plea, filed by 10 women Navy officers who were due to retire on 31st December 2020 along with such similar pleas on 19th January 2021.This is a new change in the Indian Navy system, unlike the already existing freedom in the United States where every woman officer is eligible to serve in every rank and every job in the US navy since the year 1994. Similarly, in the United Kingdom, women officers are eligible for all jobs including the full range of specialist qualification. But, keeping the existing freedom for women Navy officers in the other countries, it can be said that India is walking towards such gender equality as well, which is a good sign for a bright future for women in India. These new judgements will also encourage more and more women to apply for the Indian Armed Forces.

EX TURPI CAUSA NON ORITUR ACTIO

Ex Turpi Causa Non Oritur Actio is a legal doctrine which means from an immoral cause no action arises. It applies to cases where a plaintiff loses his right to pursue a legal remedy if the same emerges in connection with his own illegal act. Thus, if the basis of the plaintiff’s action is unlawful, in general, he/ she will not succeed. This maxim is often used as a general defence in cases of civil wrongs of tort, contract and trusts.

In terms of contract, it allows the courts to deny contractual remedy on a defendant if the very subject matter of the contract is directly or by implication, contrary to the public policy or in contradiction with any existing law or custom.

Under torts, it does not outrightly disable the plaintiff from recovering and is not a complete bar on claim for damage. He/ she may claim compensation if the wrongful act is quite independent of the harm caused to him. However, he/ she may lose this action if the wrongful act is the real cause of his harm. The case could be that of contributory negligence, wherein, the compensation payable is reduced in proportion to his own fault in matter.In National Coal Board v England, the Court observed- If two burglars, A and B, agree to open a safe by means of explosives, and A so negligently handles the explosive charge as to injure B, then B might find some difficulty in maintaining an action for negligence against A.In the case of Patel v. Mirza (2016) UKSC 42, the court replaced this doctrine with a new set of principles. In this case, the claimant had given money to the defendant for using insider information which is an offence. However, the information ended up being false and the plaintiff filed the suit to recover the amount. The court ruled that the defendant would be unjustly enriched which was against public interest. Thus, the plaintiff was allowed to recover the amount allowing restitution of both parties.

Therefore, the public conscience test was upheld by the court.

SRILANKAN AIRLINES HELD GUILTY FOR NOT CONSTITUTING ICC

Today, across the globe, sexual harassment at workplace is increasingly understood and recognized as a violation of women’s rights and a form of violence against them. The doctrine of equality and personal liberty laid down in Articles 14, 15 and 21 of the Indian Constitution secure a person’s right to equal protection under the law, to live a life free from discrimination on any ground and protection of life and personal liberty. Whereas sexual harassment of women at workplace is not only discriminatory but it also abrogates women’s right to life and livelihood. In India, for the first time in 1997, a petition was filed in the Supreme Court in the case of Vishaka and Others v. State of Rajasthan to enforce the fundamental rights of a working women after the brutal gang rape of Bhanwani Devi, a social worker from Rajasthan. As an outcome the Court laid down a landmark judgment and the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 was enacted. The Act made it mandatory for every employer to provide a mechanism to redress grievances pertaining to any acts of sexual harassment against women at workplace and establish gender equality at workplaces. The Act is also unique for it is applicable to the organized as well as the unorganized sector. The Act provides for two kinds of complaints mechanisms: Internal Complaint Committee (ICC) and Local Complaint Committee (LCC). All Complaint Committees must have 50 per cent representation from women and the ICC or LCC members will hold their position not exceeding three years from the date of their nomination or appointment. Section 4 (1) of the Act mandates that every employer of a workplace shall, by an order in writing, constitute a Committee to be known as the “Internal Complaints Committee.” On 24 December, 2020 the District Court of Delhi namely Patiala House Court convicted Srilankan Airlines for an offence under Section 26 of the Act after a complaint was filed against the airlines. The victim had alleged that she had been sexually harassed multiple times and she had reported the same to the then supervisor of the accused, the Regional Manager. But the company deliberately delayed the inquiry with a pretext that appropriate action will be taken whereas in fact, no action was initiated even after repeated incidents against the victim. After which at the request of National Commission for Women, an enquiry was conducted by the police in the matter. Additionally, an FIR was lodged against the accused manager. The Court held the Regional Manager- Lalith De Silva guilty under Section 509 of IPC for outraging the modesty of one of his junior colleagues at its Delhi division office while he was posted there. Further, the Metropolitan Magistrate, while passing the judgement held that it is mandatory for every workplace, organization, etc. to constitute an Internal Complaints Committees and have women representation in the same. In the case mentioned, the Airlines had failed to comply with the provisions and conditions laid down in the said PoSH Act and hence the Court held them liable under Section 26 of the Act and imposed a fine of Rs. 50,000/-. The court gave a next date of January 7 for further arguments on the quantum of sentence.

ARE FATWAS LEGALLY BINDING IN INDIA ?

According to the Oxford Dictionary of Islam, a fatwa is “an authoritative legal opinion given by a legal scholar (Mufti) in response to a question posed by an individual or a court of law”. Initially, fatwas were independent of the judicial system, later during colonial rule, Islamic colleges (Madrasas) took over the role of religious guides and established special institutions to issue fatwas. In the present day, Muslim states have attempted to control fatwas through official advisory organizations within religious ministries. A fatwa is neither binding nor legally enforceable.Recently, the High Court of Delhi in the case of Mohd Ashraf & Ors. v. Abdul Wahid Siddique (2020) ruled that no legality is attached to a fatwa in respect of ownership of immovable property and it is not binding on any third party. In the above case, the plaintiffs claimed to be owners of a suit property, and the defendant was a tenant of that property. The plaintiffs purchased the suit property through a registered sale deed, pursuant to which notice demanding arrears of rent and vacation of premises were issued to the defendant. The plaintiffs claimed that the defendant is merely a tenant and has no right over the suit property. A fatwa was issued by a Mufti, as per the plaintiff’s, and it vested rights of the suit property in the person whose son transferred the property to the plaintiffs through the sale deed. The defendant challenged the ownership of the plaintiffs on various grounds leading to the filing of the suit for possession. The defense was of the opinion that the original owner had made a declaration, transferring ownership in favour of the tenants. Based on these facts the High Court of Delhi stated-“While a fatwa can be the basis of an amicable settlement of disputes between parties who submit to such a settlement process, binding the same on a third party would be contrary to law”. Hence, the Court laid down the verdict in favour of the defendants. This ruling can be further backed up with a precedent laid down by the Supreme Court of India in Vishwa Lochan Madan v. UOI & others (2014) where it pronounced that a fatwa does not satisfy the requirements of a legally binding document and it does not trace its origin to a validly made law, making it clear that a fatwa cannot be imposed on a third party. The Supreme Court has made this decision with the reasoning that a fatwa lacks legal sanction since it must be either created or sanctioned by any law made by the legislature or passed by the judiciary. A fatwa does not fulfil these requirements, therefore, a Mufti who issues a fatwa has no authority or powers to impose his opinion and enforce the fatwa on anyone by any coercive method. These cases have made it clear and have established that a fatwa although can be abided by parties in their individual capacity, it cannot be legally enforceable against a third party in a Court of Law.

RIGHT TO CHANGE ONE’S NAME IS A FUNDAMENTAL RIGHT

Various High Courts in India till date have taken the same position that the right to change a person’s name is a of the Fundamental Rights granted to the citizens under Part III of the Indian Constitution. On 18th December, 2020, the Single Judge Bench of Allahabad High Court consisting of Justice Pankaj Bhatia, held that the change of name is an expression guaranteed under Article 19(1)(a) and Article 21 of the Constitution of India. A petition was filed before the Court since the petitioner pleaded to change his name from Rishu Jaiswal to Kabir Jaiswal in the school documents however, the CBSE (Central Board of Secondary Education) refused to change the petitioner’s name on his certificates. The Court strongly relied upon the Kerala High Court judgment, Kailash Gupta v. CBSE, where it has been held that to have a name and to express the same in the manner that a person wishes is a part of the right to freedom of speech and expression granted under Article 19(1)(a) as well as the right to liberty under Article 21 of the Constitution of India. In the said judgment, the Kerala High Court was dealing with the scope of Rule 69.1(i) of the CBSE Rules and the Court had permitted the change of name prior to the declaration of the result by CBSE by holding the same to be a right under Article 19(1) (a) and Article 21 of the Constitution of India. The Court also observed that “Name is something very personal to an individual. Name is an expression of one’s individuality, one’s identity and one’s uniqueness. Name is the manner in which an individual expresses himself to the world at large. It is the foundation on which he moves around in a civil society. In a democracy, free expression of one’s name in the manner he prefers is a facet of individual right.” The Allahabad High Court also relied upon the recent Delhi High Court Judgement in the case of Rayaan Chawla v. University of Delhi & Anr, wherein Delhi University, based on a notification dated 1st August, 2015 refused to permit the petitioner to have his name changed on the ground that the student is firstly required to get the name changed in the records of the CBSE. The Court held that it was impossible to get the name changed in the CBSE records as the regulations in question does not permit the same, however, it directed the University of Delhi to permit the petitioner to change the name.The Allahabad High Court opined that the CBSE is a Society registered under the Societies Registration Act, and is governed by the bye-laws and the CBSE rules “do not have any statutory flavor”. The Court further stated that “The freedom of expression as guaranteed under Article 19(1) (a) includes within its sweep all forms of expressions and names in the present world is clearly a strong expression”. Further, the rights enshrined in Article 19(1)(a) are fundamental and thus can only be taken away in accordance with the procedure under Article 19(2) of the Constitution of India.

SC’S STAND ON MISLEADING ADVERTISEMENTS ABOUT COVID-19 CURE

Since the COVID-19 pandemic, people are in a desperate attempt to find its cure to go back to leading a normal life. Taking advantage of the same many people, corporate, businesses, agencies etc. have claimed unlawfully to have a cure or treatment for this virus and have advertised the same on various platforms. The advertisements of high concern were that Homeopathy, Ayurveda, Naturopathy, etc. have treatment for COVID-19. The public might believe these advertisements to be accurate taking into consideration the good reputation and safety of these medicinal systems. To condemn such behavior of many agencies, the Ministry of AYUSH (Ayurveda, Yoga, Naturopathy, Unani, Siddha and Homoeopathy) in consultation with the Government of India had released an advisory/ guidelines on 24th March 2020 for government authorities of center and state to take effective measures with regards to such matters and ensure punishment for those who make false claims. The advisory report states as follows:“Accordingly, in the exercise of the powers of Central Government, conferred under Section 33(P) of the Drugs and Cosmetics Act, 1940, it is hereby directed to all concerned ASUYH Regulatory Authorities in the States/Union Territories to stop and prevent publicity and advertisement of AYUSH-related claims for COVID-19 treatment in print, TV and electronic media and take necessary action against the persons/agencies involved in contravening the relevant legal provisions and the aforesaid guidelines of National Disaster Management Authority.”However, these guidelines were not well received by Advocate M.S.Vineeth and hence a PIL was filed in Kerala High Court, namely Advocate M.S.Vineeth v. The Secretary dated 21 August 2020. The PIL was challenging the guidelines to be inaccurate to the extent that they bar the practice and system of Homeopathic Medicine to cure Covid-19 since as per the petitioner the system has been helpful in preventing outbreaks. The Kerala High Court disposed of the petitioner’s PIL and held the guidelines issued by the Ministry of AYUSH to be accurate. The court held:“Doctors practicing in AYUSH medicines are not supposed to prescribe any medicines, stating that it is curative for COVID-19 disease. However, as per the advisory, there is nothing prohibiting the qualified medical AYUSH practitioners to prescribe immunity booster mixture or tablets, as suggested by the Ministry of AYUSH, Government of India. Medical practitioners in AYUSH can also prescribe the same, but only as immunity boosters.If any qualified doctor practicing AYUSH medicine, makes any advertisement or prescribes any drugs or medicines, as a cure for COVID-19 disease, except those specifically mentioned in Annexure-I advisory to Exhibit-P1 D.O. letter dated 6.3.2020, it is open for the respondents to take appropriate action under the provisions of the Disaster Management Act 2005, and the orders of the Governments, both Central as well as the State, issued from time-to-time.”Resulting from this judgment, Dr. AKB Sadbhavana Mission School of Homeo Pharmacy appealed against it in the Supreme Court of India. On 15th December 2020, the Supreme Court of India in the case of Dr. AKB Sadbhavana Mission School of Homeo Pharmacy v. The Secretary, Ministry of AYUSH & Ors. while upholding the observations made by Kerala HC regarding misleading advertisements for cure of Covid-19, differed on a point that “actions can be taken against Homeopathic Medical Practitioners” and held the same to be restrictive since the advisory dated 6th March, 2020 issued by Ministry of AYUSH already regulates the conduct of such practitioners.

CURSUS CURIAE EST LEX CURIAE

Cursus curiae est lex curiaeis a Latin maxim which means practice of the Court is law of the Court, i.e. the course of procedure followed by the Courts becomes the law of the Court especially in absence of any other prevailing law. This maxim was established by Coke C.J. in Burrowes v. High Commission Court, 3 Bulst. 48, 53; (1701) 3 Bulst. Calcutta HC. The maxim was re-iterated by the Apex Court in various Indian Judgements, for instance, in Collector of Central Excise, Madras Vs. Standard Motor Products and Ors. [AIR 1989 SC 1298] and Jamal Uddin Ahmad v. Abu Saleh Najmuddin [(2003) 4 SCC 257]. The maxim holds great significance since it is often applied by the Courts in various cases.

In Indore Development Authority v. Manohar Lal [2019 SCC Online SC 1392] the Supreme Court denied a plea seeking the recusal of a judge on the grounds that he had already adjudged on the similar subject matter and held that since it is the practice of the Indian Courts that the judges do hear the same cases, the non-recusal by retired justice Arun Mishra was valid in law. However, this maxim cannot be applied in presence of explicit laws unless the situation demands otherwise i.e. unless the laws do not extend to the extraordinary situation.

CONSTITUTIONALITY OF 1975 EMERGENCY CHALLENGED IN SC AFTER 45 YRS

In 2020, India completed 45 years from the National Emergency of 1975. It was the third national emergency declared in the nation. Indira Gandhi, the then Prime Minister was declared guilty of electoral malpractices and was barred to participate in any election from 12th June 1975  till the next 6 years and the Congress party was given 20 days-time to find a replacement. Indira Gandhi challenged this judgement in the Supreme Court. However, the Court on 24th June 1975 reiterated the same and held that till the stay period, Indira Gandhi had the powers of a PM. At around 9:30 p.m., on 25th June 1975, the proposal for proclamation of Emergency was sent to President Fakhruddin Ali Ahmed and Indira Gandhi acting as the prime minister invoked Article 352 of the Constitution and announced a National Emergency due to ‘Internal disturbance’. The press, media, movies and any other kind of art was censored and all other fundamental rights were suspended. After 45 years of this national emergency, a woman named Vera Sarin filed a petition before the Apex Court to declare the emergency of 1975 as ‘unconstitutional’. She states that she and her family were the victims of the excesses of that ‘grave and dark period of our nation’s history’. She stated the miserable living condition of her family due to exploitation by government administrators. Vera Sarin’s husband had a business of gold arts, gems, artefacts etc. and was booked under the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1947 (COFEPOSA) and the Smugglers and Foreign Exchange Manipulators (Forfeiture of Property) Act of 1976 (SAFEMA). The case was dismissed by Delhi High Court in the year 2014. However, he was thrashed with numerous other cases, threatened by police and their family property was raided repeatedly. The petition stated, “Even as on date, the movable properties including jewellery, artefacts, figurines, paintings, sculptures, and other valuables have still not been reinstituted to her family. The petitioner is entitled to be compensated for the acts, deeds and things done under the authority of the government,” thus the petitioner has claimed compensation of Rupees Twenty-five crore. The petition was filed relying on the judgment of KS Puttaswamy (Retd.) vs. Union of India which overruled the ruling given in ADM Jabalpur case. During the period of emergency, the state is empowered to suspend the Fundamental Rights guaranteed under Article 19 of the Constitution, the power to suspend the operation of these fundamental rights is vested not only in Parliament but also in the Union Executive and even in subordinate authority. However, Article 21 which talks about right to life and personal liberty cannot be suspended in any case. In the case Maneka Gandhi v. Union of India, the Supreme Court held that the expression “life” does not merely connote animal existence or a continued drudgery through life, the expression “life” has a much wider meaning. It is, therefore, claimed that the petitioners were deprived of that “life” due to the actions taken against them during and as a result of the National Emergency of 1975. The maintainability of the petition was questioned in the Supreme Court before Justice Kaul whereby he gave a further date for hearing the matter on Monday i.e., 14th December 2020. The petitioners will be represented by Adv. Harish Salve.

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