The plea was filed by the petitioner as the state government had suggested an alternative route for the procession to avoid repetition of violence which had taken place last year during the Ram Navami yatra on the same route, LiveLaw reported. 

In another plea filed in the Bombay High Court by Aftab Siddique, (pending for over a month) in which the petitioner was seeking registration of First Information Reports (FIRs) against BJP legislators Nitesh Rane, Geeta Jain and T. Raja for allegedly delivering hate speeches during communal clashes in Mira Road in January, as per LiveLaw. During the hearing of the same petition, the issue of carrying out Ram Navami rally in communally sensitive areas was also taken up for the discussion. The bench of Justice Revati Mohite Dere and Manjusha Deshpande while granting permission for the rally to be taken out in Mumbai’s Malwani area for Ram Navami celebration directed the police to take all necessary measures to prevent any potential breaches, and take action against speakers and organizers for violating the law, irrespective of political affiliations.

The petitioners had maintained that the rallies were carried out in communally sensitive areas and were stopped just behind the mosques to deliberately provoke them. Allaying the concerns of the petitioners, even as the bench permitted the rally for Ram Navami celebration, it asked the police to change the route and provide alternative options instead. In balancing freedom of expression and association and reasonable restrictions for the purpose of public order, the court noted that “We cannot stop any public rally, but we expect your officers will take appropriate action in accordance with the law if there is any breach, irrespective of political party. If the speaker says something in breach, they (police) can take action.”, Indian Express reported. In addition, it cautioned the police and said, “Ultimately, a law-and-order problem comes, you (police) will face problems.”, LiveLaw reported quoting the bench. In response, counsel for the state, Binrendra Saraf, informed the court that the Commissioners of Police (CPs) will review the speeches made by the speakers and decide within a week whether FIR(s) for hate speech should be lodged.

Additionally, the court expressed its displeasure over the incident in which Nitesh Rane gave a press conference from the Police Commissioner’s office during which he allegedly delivered a hate speech and asked the state to ensure that it is not repeated, as not anyone can hold a meeting with press from the Commissioner’s office. 

Spate of violence due to religious processions 

Historically in India, religious processions carried out through communally charged routes have often turned violent and resulted in loss of lives, livelihoods, damage to property, and polarisation of neighbourhoods. Whether it is Ram Navami, Eid, Muharram, Shobha Yatra, or any other any occasion for these religious processions to be taken out, it has been observed that in the absence of close monitoring by the authorities and proper planning of the routes, the possibility of flare up and violence is quite normal. Moreover, this has amounted in the past and present to a breach by both the jurisdictional police and district magistracy of statutory laws and guidelines, we tested and laid down.

Often, these processions at times have caused violence in the areas or themselves have come under attack from neighbourhoods they pass through, especially in cases where such yatras are mobilised by fringe political forces or extremist groups. In addition, these processions, when unregulated, have resulted in political actors and religious leaders delivering hate speeches, brandishing weapons, and inciting violence against members of other communities. Now, with the deployment of loud DJs and music system on the processions, the instances of playing hate songs targeting minorities have also increased. In recent years, these factors have cumulatively contributed to processions turning violent, or being attacked (for example, see here, here, and here).

CJP’s initiative for framing guidelines for the processions

In order to ensure that (religious) processions are carried out in a peaceful and non-violent manner, moreover to ensure that statutory law and guidelines are observed, Citizens for Justice and Peace had moved the apex court through a writ petition to issue definitive guideline and Standard Operating Procedure (SOP) governing the processions, including looking at the question of whether or when a procession should be allowed or not.  Though the petition was dismissed citing the jurisdictional issues, it is pertinent to highlight some of its demands.

In a petition that was filed by CJP in May 2022, soon after the violence that erupted in several cities following Shobha Yatra, the organisation prayed for directions from the Supreme Court to pass guidelines, SOPs, and issue directions to the Union and States to strictly implement and follow statutory provisions of law and act on recommendations of several Judicial Commissions of Inquiry that have dealt with the regulation of such religio-political processions (that have thereafter erupted into bouts of communal violence) in the past. The PIL was filed on the principles of secularism, equal protection of law, and protection against violence, which the State is bound to guarantee to all its citizens. The petition relied on a series of judicial precedents, statutory laws, Indian Penal Code (IPC), Code of Criminal Procedure (CrPC), an Advisory by the Ministry of Home Affairs (MHA), Punjab Police Guidelines, and reports of Commissions of Inquiry, especially, the report of Justice DP Madon Commission of Inquiry. 

Citing the MHA advisory, issued separately in both 2018 and 2019, CJP highlighted the need to ban arms in the processions. The relevant portion of MHA advisory reads, “It is once again requested to ensure that strict legal actions are taken…against the person(s) indulged in the illegal practices of celebratory firing in marriages, public gatherings, religious places / processions, parties, political rallies etc. so as to curb such incidences. Further, licenses of such perpetrators…to be cancelled in accordance with the law”. 

Similarly, the Punjab Police Guidelines 2018 requires videotaping of the processions and undertaking from the organisers to maintain lawful behaviour and conduct. The guideline notes that the organisers are required to ensure that “no inflammatory speech or any unlawful activity is done at the venue of procession or assembly, which may cause tension in the area or create mutual hatred…amongst different communities, castes, groups, religions etc.”

The petition also referred to the judgement of the apex court in the case of Praveen Togadia v. State of Karnataka (2004) 4 SCC 684, which upheld the administrative order of the state government issued in order to restrict a gathering which could turn violent. 

Finally, CJP’s petition also highlighted the recommendations made in the reports of various Commissions of Inquiry, most importantly, the Justice DP Madon Commission, which was constituted in the aftermath of communal disturbances which took place in Bhiwandi and other places in the State of Maharashtra in May 1970. DP Madon Commission had specifically recommended that processions likely to provoke trouble stand on a special footing and before granting permission for such processions, the police should do a proper assessment of the routes and possible exit and entry points, including the bottles, to ensure that nothing untoward happens during the procession. 

Additionally, while the PIL in this case was dismissed, an Intervention Application (IA) in a separate but related case, related to the Shobha Yatra being unlawfully conducted at Jahangirpuri, Delhi is still pending along with the original petition. This IA also prays for directions from the Supreme Court to pass guidelines, SOPs, and issue directions to the Union and States to strictly implement and follow statutory provisions of law and act on recommendations of several Judicial Commissions of Inquiry that have dealt with the regulation of such religio-political processions (that have thereafter erupted into bouts of communal violence) in the past.

This week, CJP has compiled an easy-to-read Handbook, titled, “Towards a Hate Free Nation” which it has despatched to the police and administrative authorities in 36 districts in Maharashtra to ensure that they implement recent Supreme Court (SC) and Bombay High Court (HC) judgements on how to distinguish controversial speech from hate speech (speech that causes harm). Apart from excerpts and references to the recent judicial precedents, the Handbook also contains references to Circulars issued in 2023 by the Director General of Police (DGP) Maharashtra strictly instructing police stations to ensure preventive measures, investigate and prosecute hate speeches fairly. The Handbook may be accessed here 

As part of its continuing campaign to ensure a hate free neighbourhood and nation, CJP has urged the Maharashtra State Election Commission (SEC) to issue an advisory to all district authorities in light of the scheduled, Ram Navami observed on Wednesday, April 17. 

Related:

Ram Navami: Violent Clashes in many states of India 

Majoritarian Politics via Ram Navami Processions and Opportunist Muslim Elites 

Study reveals 668 hate speech cases in 2023, BJP major player

The post As courts grant permission for Ram Navami processions, they strictly caution administration to ensure no arms displayed, no DJs, no untoward incidents take place appeared first on SabrangIndia.

Addressing the issue of undertrial inmates languishing in jails even after having been granted bail, due to their failure to fulfill the conditions set in the bail order or for other reasons, the Supreme Court issued a number of guidelines to deal with the same. The guidelines are as follows:

“1)The Court which grants bail to an undertrial prisoner/convict would be required to send a soft copy of the bail order by e-mail to the prisoner through the Jail Superintendent on the same day or the next day. The Jail Superintendent would be required to enter the date of grant of bail in the e-prisons software [or any other software which is being used by the Prison Department].

2) If the accused is not released within a period of 7 days from the date of grant of bail, it would be the duty of the Superintendent of Jail to inform the Secretary, DLSA who may depute para legal volunteer or jail visiting advocate to interact with the prisoner and assist the prisoner in all ways possible for his release.

3) NIC would make attempts to create necessary fields in the e-prison software so that the date of grant of bail and date of release are entered by the Prison Department and in case the prisoner is not released within 7 days, then an automatic email can be sent to the Secretary, DLSA

4) The Secretary, DLSA with a view to find out the economic condition of the accused, may take help of the Probation Officers or the Para Legal Volunteers to prepare a report on the socio-economic conditions of the inmate which may be placed before the concerned Court with a request to relax the condition (s) of bail/surety.

5) In cases where the undertrial or convict requests that he can furnish bail bond or sureties once released, then in an appropriate case, the Court may consider granting temporary bail for a specified period to the accused so that he can furnish bail bond or sureties.

6) If the bail bonds are not furnished within one month from the date of grant bail, the concerned Court may suo-moto take up the case and consider whether the conditions of bail require modification/ relaxation.

7) One of the reasons which delays the release of the accused/ convict is the insistence upon local surety. It is suggested that in such cases, the courts may not impose the condition of local surety.”

Following discussions with ASG K. M. Nataraj, the three Amici Curiae, Advocates Gaurav Agrawal, Liz Mathew, and Devansh A. Mohta, presented extensive and comprehensive suggestions to the court. The above-mentioned directions are a part of the same, as has been reported by the LiveLaw.

The bench of Justices Sanjay Kishan Kaul and Abhay S. Oka further stated in the ruling that the Government of India should negotiate with NALSA whether it would provide secured access to the e-prison portal to the Secretaries of the SLSAs and DLSAs, allowing for improved follow-up with jail authorities. ASG KM Nataraj informed the bench that giving permission would not be a problem, but that he would obtain instructions and report to the court on the next hearing date, as provided by the LiveLaw.

Previous directions given by the SC- Disposing cases through Plea Bargaining, Compounding of Offences and Probation of Offenders Act

In September 2022, the Supreme Court had issued the following guidelines for disposal of criminal cases by resorting to the triple method of plea bargaining, compounding of offences and under the Probation of Offenders Act, 1958.

1. “As a pilot case, one Court each of Ld. Judicial Magistrate 1st Class, Ld. ACJM or CJM, and Court of Sessions in each district may be selected.

2. The said courts may identify cases pending at pre-trial stage, or evidence stage and where the accused is charge sheeted /charged with offence(s) with a maximum sentence of 7 years’ imprisonment. The Ld. Court would exclude cases mentioned in Section 265A Cr.P.C., namely offences notified by the Central Government vide notification dated 11.07.2006 or offences committed against women or child/ children less than 14 years.

3. The identified cases can thereafter be posted on a working Saturday or any other day which is suitable to the court with notice to the Public Prosecutor, complainant and the accused. The said notice would indicate that the court proposes to consider disposing of those cases under Chapter XXIA of Cr.P.C. plea bargaining, Probation of Offenders Act, 1958 or compounding i.e. Section 320 Cr.P.C. The notice will also indicate that the accused/complainant would be entitled to avail legal aid and details of the District Legal Services Authority would be made available in the said notice. It would also be made clear that the accused has to remain present with his/ her advocate and the complainant may also remain present with his/her advocate.

4. The Public Prosecutor would be required to ascertain the criminal antecedents of the accused. Only cases of first time offenders would be taken up.

5. On the date fixed, the court can inform the accused of the provisions of plea bargaining. The Court can also persuade the parties to compound the offence (if the offences are compoundable). The Court can also inform the accused of the benefits of Probation of Offenders Act, 1958. The services of panel lawyers from District Legal Services Authority would also be made available to the accused/ Complainant.

6. The Court may give time to the accused/complainant to think over the matter and give another date.

7. In cases where the under trial is in judicial custody, the trial court may explain to the accused and the learned counsel appearing for the accused to explore the possibility of plea bargaining or compounding or benefit of Probation of Offenders Act. The accused can be given time to consider the matter. The services of panel lawyers of District Legal Services Authority can also be made available. For this purpose, a list of such accused can be furnished to the Secretary, DLSA to depute the panel lawyers of sufficient seniority to explain the provisions to the accused, who are in custody.

8. It is suggested that a brief training session may also be organised for the Ld. Judicial Officers in the Judicial Academies.

9. A timeline of 4 months may be fixed to carry out this exercise namely:- i) Training of Judicial Officers & Identification of cases – 1 month ii) Notice to the parties – 1 month iii) Consideration of the matter – 2 months”

The above guidelines formed a part of the detailed and comprehensive suggestions submitted to court by the three Amici Curiae viz. Advocates Gaurav Agrawal, Liz Mathew and Devansh A. Mohta, after discussion with ASG K. M. Nataraj.

The bench of Justices Sanjay Kishan Kaul and Abhay S. Oka had also observed that High Courts may depute a Nodal Officer of the rank of the Registrar in each of the Courts to carry out the monitoring of the above. It had added the following two caveats:

“(a) Instead of prescribing only one Court in each District, as specified in clause 3.1 above, we leave it to the administrative side of the High Court to prescribe such number of Courts as may be considered practical by each of the High Court.

(b) In matters where time bound schedule has been laid down by the High Courts or Supreme Court of India, that schedule should not be disturbed so as to avoid delay in those cases.”

The complete order can be read here.

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1.9 lakh POCSO cases pending in Fast Track Courts: Ministry of Women and Child Development

UAPA: 11.7% rise in cases pending trial, shows MHA data

SC exists to protect personal liberty: CJI DY Chandrachud 

The post Directions issued by the SC to prevent Delay in Release of Prisoners appeared first on SabrangIndia.

The Bombay High Court has granted interim stay on the operation of Rule 9 of the Information Technology Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021 (2021 Rules) for infringing Freedom of Speech and Expression as conferred by Article 19(1)(a) of the Constitution. The bench headed by Chief Justice Dipankar Datta and also comprising Justice GS Kulkarni also opined that prima facie Rule 9 is ultra vires the provisions of the Information Technology Act, 2000 (IT Act) being beyond the delegated power.

Background

The writ petition was filed by The Leaflet against the 2021 Rules, on the ground that they are ultra vires the IT Act. The PIL was filed by journalist Nikhil Wagle. The counsels for both petitioners argued that the 2021 Rules are ex facie draconian, arbitrary and patently ultra vires the provisions of the IT Act and the provisions of Articles 14, 19(1)(a) and 19(1)(g) of the Constitution.

The Leaflet, as a platform publishing articles, opinion pieces as well as news raised concerns over Rules 9, 14 and 16. Rule 9 requires a publisher to have self-regulation as well as an oversight mechanism by the central government and also states that any publisher 2021 Rules, a publisher referred to in rule 8 who contravenes any law for the time being in force, shall also be liable for consequential action as provided in such law, which has so been contravened. Rule 14 provides for inter-departmental committee to be constituted by the Union government, who shall be administered by the Ministry of Information and Broadcasting, which will hear complaints regarding violation of code of ethics by the entities and after a hearing may direct the entity to issue an apology, edit the published article, modify the same or delete it completely. Rule 16 provides for “blocking of information in case of emergency” and allows an authorised officer to recommend removal of content if it fulfils grounds under section 69A of the IT Act. Under section 69A of the IT Act, if the government is satisfied that that it is necessary or expedient so to do, in the interest of sovereignty and integrity of India, defence of India, security of the State, friendly relations with foreign States or public order or for preventing incitement to the commission of any cognisable offence relating to above, it may direct any agency of the Government or intermediary to block for access by the public any information.

Arguments

Senior Advocate Darius Khambata for The Leaflet argued that the provisions of Rule 9 , 14 and 16 are patently ultra vires Article 19(1)(a) of the Constitution in as much as such provisions travel beyond the ambit of the restrictions as imposed under Article 19(2). He also submitted that the Rules have a terrible chilling effect in their applicability to the internet as they bring about a manifestly unreasonable and an arbitrary regime amounting to an affront to the constitutional guarantee of the right of citizens to exercise freedom of speech and expression.

He argued, “The 2021 Rules have been framed as if it is a substantive legislation, completely transgressing the rule making power available under Section 89of the IT Act. It is submitted that not a single provision under the IT Act and much less Section 69-A and Section 87 would provide having such restrictions and control as brought about by the impugned rules.” He submitted that “a subordinate legislation is intended to sub-serve the provisions of the principal Act and cannot result in creating fresh rights, obligations and liabilities not traceable in the enactment conferring power to frame rules.”

Abhay Nevagi appearing for Wagle supported these submissions and said that the 2021 Rules amount to a virtual censorship on the information that is openly available not only in the print/electronic media, but also on the social media. He submitted that no other country has such a mechanism to control the information in such a manner and that the 2021 Rules impose mass censorship.

Anil Singh appearing for the Union Government referred to the short affidavit filed by Singh, Deputy Secretary, Ministry of Information & Broadcasting which states that there is a presumption of constitutionality of the rules considering the settled principles of law and that there is no need to stay the 2021 Rules since the inter-departmental committee as contemplated by Rule 14 has not been constituted. Singh submitted that out of 1800 digital media publishers, 97% publishers of news and current affairs houses, have not challenged the 2021 Rules and thus the provisions are accepted and implemented.

The court’s findings

The court refused to interfere with Rule 14 as neither the inter-departmental committee has been constituted, nor has the authorised officer been appointed and gave the petitioners the liberty to urge the court for relief when the committee is constituted. The court also read Rule 16 to be similar to Rule 9 of the 2009 Rules to which no objection has been raised and hence the court found that no case was made to stay Rule 16. “In any event, blocking of information in case of emergency as provided by Rule16 is on the grounds traceable in sub section (1) of Section 69A of the IT Act which is a provision falling in line with the restrictions as imposed by Article 19(2) of the Constitution…,” the court observed.

The court also refused to interfere with Rule 7 of 2001 Rules in the absence of clear satisfaction that the petitioner, Nikhil Wagle being a journalist, is an ‘intermediary’ within the meaning of Section 2(w) of the IT Act.

About Rule 9

Coming to Rule 9 of the 2021 Rules, the court observed that it suffers from two illegalities firstly, it imposes an obligation on the publishers of news and current affairs content and publishers of online curated content to observe the Code of Ethics under a completely different statutory regime alien to the IT Act, namely, by applying norms of Journalistic Conduct of the Press Council of India under the PC Act and Programme Code under Section 5 of the CTVN Act.

“It cannot be overlooked that the two provisions referred to in the “Code of Ethics”, namely, Norms of Journalistic Conduct of the Press Council of India under the PC Act and the Programme Code under Section 5 of the CTVN Act are under different statutory regimes occupying the field for the purposes of those two enactments.  It is prima facie difficult to comprehend as to how such fields which stand occupied by independent legislations can be brought within the purview of the impugned rules and substantive action can be taken for their violation under the impugned rules,” the court said.

The court also pointed out that even otherwise the IT Act does not seek to censor content on the internet, except for provisions under section 69A of the Act.

The court also referred to the norms of Journalistic Conduct of the Press Council of India and observed that the sanction behind these norms, are moral and not statutory in nature. Yet, the 2021 Rules make this obligation mandatory, and exposes violators to more rigorous action than what the PCI Act envisages.

“It is, therefore, incomprehensible as to how by a subordinate legislation, contravention of such code laying down standards of moral behavior, could validly be made a ground for attracting action of the nature specified in Rule 14(5) of the 2021 Rules,” the court said.

About the application of Cable Television Networks Act and Rules, the court observed that it is mainly intended to provide a framework for regulation of programme carried in the cable service and the do’s and don’ts of the Programme Code may be relevant for a programme carried in the cable service but per se cannot bind writers/editor/publishers of content on the internet to express views which may be against good taste or even may not be decent.

“If a writer/editor/publisher has to adhere to or observe the Programme Code in toto, he would necessarily be precluded from criticizing an individual in respect of his public life [see: Rule 6(1)(i)],” the court stated.

“Dissent in democracy is vital. It is, however, the checks and balances that make a democracy work. There can be no two opinions that a healthy democracy is one which has developed on criticism and acceptance of contra views. Opinion based on criticism reinforces its acceptance in a democratic society. For proper administration of the State, it is healthy to invite criticism of all those who are in public service for the nation to have a structured growth but with the 2021 Rules in place, one would have to think twice before criticizing any such personality, even if the writer/editor/publisher may have good reasons to do so without resorting to defamation and without inviting action under any other provision of law.”

The court said that allowing the 2021 Rules in its form and substance form and substance to operate would result in the writer/editor/publisher standing the risk of being punished and sanctioned, should the inter departmental committee be not in favour of criticism of any public figure.

“The indeterminate and wide terms of the Rules bring about a chilling effect qua the right of freedom of speech and expression of writers/editors/publishers because they can be hauled up for anything if such committee so wishes. The 2021 Rules are, thus, manifestly unreasonable and go beyond the IT Act, its aims and provisions.”

“People would be starved of the liberty of thought and feel suffocated to exercise their right of freedom of speech and expression, if they are made to live in present times of content regulation on the internet with the Code of Ethics hanging over their head as the Sword of Damocles. This regime would run clearly contrary to the well recognized Constitutional ethos and principles,” the court observed.

The court held that neither clause (z) nor clause (zg) of sub section (2) of Section 87 under which the 2021 Rules are framed would confer any power on the Central Government to frame a provision in the nature of Rule 9. In the court’s prima facie opinion, Rule 9 appears to be ultra vires the provisions of the IT Act being beyond the delegated power. Furthermore, the court also said that Rule 9 also prima facie appears to be infringing the constitutional guarantee of Freedom of Speech and Expression as conferred by Article 19(1)(a) in subjecting the publishers of news and current affairs content and publishers of online curated content subject to action under the statutory regime of the PC Act and the CTVN Act , which provides for an independent mechanism for any violation of the provisions of such legislation.

The court cited State of Tamil Nadu vs. P. Krishnamurthy (2006) 4 SCC 517, and inferred that although there is a presumption in favour of constitutionality or validity of subordinate legislation, it is well recognized that a subordinate legislation can be challenged on the ground of lack of legislative competence to make the subordinate legislation, violation of fundamental rights guaranteed under the Constitution or exceeding the limits of authority conferred by the enabling enactment and on the ground of manifest arbitrariness/ unreasonableness.

The court thus granted an interim stay on the operation of Rule 9 sub-rules (1) and (3). The court has also directed the respondents to file reply affidavits within 3 weeks and kept the petitions for final hearing on September 27.

What does this imply?

The Bombay High Court has stayed the operation of Rule 9 sub-rules (1) and (3) of the 2021 Rules in the interim until a final decision in the case is made. The Rule states:

“9.Observance and adherence to the Code.—

(1) A publisher referred to in rule 8 shall observe and adhere to the Code of Ethics laid down in the Appendix annexed to these rules…

…(3)For ensuring observance and adherence to the Code of Ethics by publishers operating in the territory of India, and for addressing the grievances made in relation to publishers under this Part, there shall be a three-tier structure as under—

(a)Level I -Self-regulation by the publishers;

(b)Level II -Self-regulation by the self-regulating bodies of the publishers;

(c)Level III -Oversight mechanism by the Central Government.”

These two sub-rules stand non-operational for now. This means that the publisher will not have to adhere to all the code of ethics such as the Norms of Journalistic Conduct of the Press Council of India under the PC Act and the Programme Code under Section 5 of the CTVN Act. Further, no self-regulation or central government oversight can be established, allowing the publishers functioning under jurisdiction of Bombay High Court, to freely publish articles without central government interference, subject to further orders of the court.

The complete order may be read here:

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The post The wide terms of the IT Rules 2021 have a chilling effect on freedom of speech: Bom HC appeared first on SabrangIndia.

The Madras High Court on June 7 established a landmark approach towards addressing the social issue of acceptance of the LGBTQIA+ community. The 104-page judgement delivered by Justice Venkatesh is a pioneering judgement in the way it has dealt with clearing out the court’s prejudices and has made an attempt towards transformative jurisprudence. The judgement describes in detail the transformative process undergone by the judge as well as the parents of the petitioners who are in a same sex relationship. 

While addressing social prejudices, the court, in conclusion, has also laid out some guidelines that could help shape the attitude of government authorities / public servants when dealing with the members of  the LGBTQIA+ community. The court gave some directions expecting the authorities to implement the guidelines in letter and spirit, not for the sake of complying with a judicial fiat, but to ensure that this society evolves, and the LGBTQIA+ community is not pushed out of the mainstream of the society. 

For the police

• The police, on receipt of any complaint regarding girl/woman/man missing cases which upon enquiry/investigation is found to involve consenting adults belonging to the LGBTQIA+ community, shall upon receipt of their statements, close the complaint without subjecting them to any harassment.

Government

• • The Ministry of Social Justice & Empowerment (MSJE), has to enlist Non-Governmental Organizations (NGOs) including community-based groups which have sufficient expertise in handling the issues faced by the LGBTQIA+ community.
  • The list of such NGOs along with the address, contact details, and services provided shall be published and revised periodically on the official website, within 8 weeks
  • Any person who faces an issue for the reason of their belongingness to the LGBTQIA+ community may approach any of the enlisted NGOs for safeguarding and protecting their rights.
  • The concerned NGO in consultation with the MSJE, shall maintain confidential records of such persons who approach the enlisted NGOs and the aggregate data shall be provided to the concerned Ministry bi-annually.
  • The problems shall be addressed with the best-suited method depending on the facts and circumstances of each case be it counselling, monetary support, legal assistance with the support of District Legal Services Authority, or to co-ordinate with law enforcement agencies about offenses committed against any persons belonging to the LGBTQIA+ community.
  • MSJE shall make adequate infrastructural arrangements within 12 weeks so that member of the LGBTQIA+ community, who require shelters and/or homes can seek shelter in short stay homes, Anganwadi shelters, and “garima greh” (a shelter home for transgender persons
  • The Union and State Governments respectively, in consultation with such other Ministries and/or Departments shall endeavour to device such other measures that are needed for eliminating prejudices against the LGBTQIA+ community

Sensitisation programmes

Police and Prison Authorities

• • Programs at regular intervals on steps to be taken for protection from and prevention of offences against the LGBTQIA+ community
  • Conduct sensitization about legal rights of LGBTQIA+ community at regular intervals.
  • Programmes creating awareness among police personnel about the Offences and Penalties as stipulated under Chapter VIII of The Transgender Persons (Protection of Rights) Act, 2019 and compliance of Rule 11 of the Transgender Persons (Protection of Rights) Rules, 2020.
  • Outreach programs to be conducted by the NGOs with community support to put forth first-hand problems faced in the hands of law enforcement agencies, and to train them in providing effective assistance.
  • Ensure that transgender and gender-nonconforming prisoners are housed separately from cis-men prisoners to eliminate chances of sexual assault by the latter on the former.

District and State Legal Service Authorities

• • Awareness programs in relation to the rights of transgender persons and prohibition of discrimination against them under The Transgender Persons (Protection of Rights) Act, 2019 periodically to be conducted in association with NGOs and community support, to understand and provide effective legal services to them.
  • The benefit of free legal aid to be extended for the members of the LGBTQIA+ community.
  • Inclusion of issues faced by the LGBTQIA+ community in Lok Adalat.

Judiciary

• • Conduct awareness programmes for Judicial Officers at all levels in coordination with the enlisted NGOs and community support and to provide suggestions/ recommendations to ensure non-discrimination of persons belonging to the LGBTQIA+ community.

Physical and Mental Health Professionals

• • Assistance to LGBTQIA+ community and their environment, by affording Physical and Mental health support who are facing stigma and discrimination from society.
  • Mental health camps and awareness programs to understand gender, sexuality, sexual orientation and promote acceptance of diversity.
  • Prohibit any attempts to medically “cure” or change the sexual orientation of LGBTIQA+ people to heterosexual or the gender identity of transgender people to cisgender.
  • To take action against the concerned professional involving themselves in any form or method of conversion “therapy”, including withdrawal of license to practice.
  • Sensitization programs as provided by Rule 10(7)(b) of Transgender Persons (Protection of Rights) Rules, 2020
  • Union Ministry of Education & Education Dept Tamil Nadu & ors
  • Effective change in curricula of Schools and Universities to educate students on understanding the LGBTQIA + Community.
  • Outreach programs to be conducted in association with NGOs and members of the LGBTQIA+ Community.
  • Through Parents-Teacher Association (PTA) meetings, sensitize parents on issues of LGBTQIA+ community and gender nonconforming students, to ensure supportive families.
  • Amendment of necessary policies and resources to include students belonging to LGBTQIA+ community in all spheres such as: 1. availability of gender-neutral restrooms for the gender-nonconforming student; 2. Change of name and gender on academic records for transgender persons 3. Inclusion of ‘transgender’ columns in application forms for admission, competitive entrance exams, etc.
  • Appointment of counsellors who are LGBTQIA+ inclusive, for the staffs and students to address grievances, if any, and to provide effective solutions for the same
  • take effective steps to implement measures in relation to transgender persons as stipulated by Chapter VI of The Transgender Persons (Protection of Rights) Act, 2019 and Rule 10 of the Transgender Persons (Protection of Rights) Rules, 2020.

Ministry of Women and Child Development

• • Non-pathologizing of gender diverse children, intersex children, and LGBTQIA+ youth.
  • Sensitization and orientation of Anganwadi Workers and similar personnel on transgender issues, and involve themselves in assisting the parents of LGBTQIA+ youth.
• Union and central govt
  • Awareness programs and workshops, with the help of LGBTQIA+ members/workers, for inclusion of LGBTQIA+ community, amongst the employees
  • Sensitization on prohibition of discrimination as provided in The Transgender Persons (Protection of Rights) Act, 2019 and relevant rules
  • Suitable changes in hiring policies for inclusivity and Setting up and enforcement of Human Resource policies to make them LGBTQIA+ community-friendly.
  • Support members of the LGBTQIA+ community in case of any grievance and extension of benefits like insurance
  • adopt suitable policies that address non-discrimination on grounds of sexual orientation, including sexual harassment of persons belonging to the LGBTQIA+ community, in workplace.

Ministry of Social Justice & Empowerment

• • Understanding and accepting children of diverse gender expressions, sexual orientation, gender identities and gender presentation.
  • Provide peer support for parents of members belonging to the LGBTQIA+ community through support groups.

The court understood that implementing these directions would take time and monitoring the same is important and hence, instead of disposing the petition, has kept it pending to issue continuing mandamus.

The court has posted the matter for August 31 for passing further orders and asked concerned departments, police, counsels representing the State and the Centre to ensure that compliance reports with regards to these directions are filed before the next date.

The complete judgement may be read here:

Related:

When a judge allows himself to be counselled, justice can mean a transformation
Allahabad HC reinstates LGBTQIA member as Home Guard, deems cancellation order ‘vindictive’
Enable Transgender Community to apply for Constable Post: Patna High Court
I am not fully ‘woke’: Madras HC judge to start psychology sessions to understand same sex relationships

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The Supreme Court is mulling interpreting the Sedition law especially on its application to freedom of press. The court made this observation while granting protection to two news channels of Andhra Pradesh from coercive action as they were charged of Sedition, promoting enmity and making statements conducing to public mischief.

“Having heard learned counsel, we are of the view that the ambit and parameters of the provisions of Sections 124A, 153A and 505 of the Indian Penal Code would require interpretation, particularly in the context of the right of the electronic and print media to communicate news, information… even those that may be critical of the prevailing regime in any part of the nation,” said the bench comprising Justices DY Chandrachud, L Nageswara Rao and S Ravindra Bhat.

The two news channels, TV5 and ABN had approached the court against the FIR filed against them, and while translating some of the vernacular terms in the FIR, Justice Rao, reportedly, remarked that it was like “muzzling the media”. Justice Chandrachud said that if a TV channel says something, it cannot be termed as Sedition, and that “some guidelines must be set,” reported Indian Express.

The bench directed a stay on coercive measures against the TV channels but did not stay the investigation. The court has granted 4 weeks’ time to the state to respond to the petition.

The police had registered a suo moto case based on an enquiry report of the DIG-CID in Guntur District on allegations that the channels were broadcasting comments made by Lok Sabha MP K Raghu Rama Krishna Raju, criticising the Y S Jaganmohan Reddy led government. Raju had alleged that he was subjected to third degree torture while in police custody and has moved the apex court seeking a CBI inquiry.

In its plea, TV5 alleged that the FIR was a consequence of the channel broadcasting the speeches of Raju. The ABN petition said that ever since the Reddy-led government came to power, “ABN Andhrajyothi” channel has allegedly been “targeted by the State Government and its broadcasting was stopped at the ruling party/State Government’s behest, forcing it to approach the Hon’ble TDSAT and despite the order, the access to the petitioners’ channel is limited in Andhra Pradesh,” reported the Indian Express.

A three-judge bench of the apex court Justices UU Lalit, Indira Banerjee and KM Joseph issued notice in April, in a plea filed by two journalists, namely, Kishorechandra Wangkhemcha from Manipur and Kanhaiya Lal Shukla from Chhattisgarh, challenging the validity of sedition law.

Related:

Manipur: Journalist, activist post comment on cow dung, charged under NSA
SC to consider Constitutional validity of Sedition law, issues notice
Our Constitution does not permit such liberal use of NSA: Justice Govind Mathur

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The Supreme Court has expressed concerns about the manner in which trial courts adopt “a casual and cursory manner, without specifically questioning the accused as to his defense under Section 313 of the Code of Criminal Procedure (CrPC) in dowry death cases.”

While hearing the appeal filed by the appellant who was charged under Section 304B (punishment for dowry death) of the Indian Penal Code, the Bench of Chief Justice of India NV Ramana, and Justice Aniruddha Bose said that many times such statements are recorded without specifically questioning the accused as to his defense.

The court noted that “examination of an accused under section 313 CrPC cannot be treated as a mere procedural formality, as it is based on the fundamental principle of fairness.”  The court elaborated on this provision and said, “Section 313 CrPC incorporates the valuable principle of natural justice “audi alteram partem” as it enables the accused to offer an explanation for the incriminatory material appearing against him. Therefore, it imposes an obligation on the court to question the accused fairly, with care and caution. The Court must put in incriminating circumstances.”

The court accepted that dowry death is a menace in society and that “there is no denying that such social evil is persisting even today”. Even though such cases are increasing day by day, the court observed that “sometimes family members of the husband are roped in, even though they have no active role in commission of the offence and are residing at distant places”.

But the Bench maintained that section 304B must be interpreted keeping in mind the legislative intent to curb the social evil of bride burning and dowry demand.

Facts of the case

The case before the Supreme Court is an appeal against the order of Punjab and Haryana High Court that upheld the conviction of the appellant. The prosecution’s story states that the appellant and the deceased woman were married in 1994 and a year later, the woman’s family was informed that she was ailing and has been admitted in the hospital.

Once they reached the hospital, they found that the deceased woman and appellant’s wife had passed away due to burn injuries. It was alleged that dowry harassment and cruelty led her to die by suicide by setting herself ablaze.

Court issues guidelines

The Supreme Court upheld the conviction of the appellant husband based on the evidence on record. It noted that when the deceased’s brother had visited her at her in-law’s house one month after marriage, she had disclosed to him that the accused husband and the mother-in-law used to physically harass her on account of insufficient dowry.

A month prior to her death, she had shifted back to her matrimonial house after staying with her parents for a while. Once she was back to her husband’s house, she was continuously harassed as disclosed to her father. “The aforesaid chain of circumstances proves that there existed a live and proximate link between the instances of demand of dowry and the death of the deceased”, said the court.

The doctor also confirmed that she died as she had suffered 85 percent burn injuries. Her entire body was doused with Kerosene oil and hence the possibility of an accident was ruled out.

The Court, then, reaffirmed the following points with respect to the law under Section 304B read with Section 113B of the Indian Evidence Act:

1. Section 304-B of IPC must be interpreted keeping in mind the legislative intent to curb the social evil of bride burning and dowry demand.

2. The prosecution must at first establish the existence of the necessary ingredients for constituting an offence under Section 304-B. Once these ingredients are satisfied, the rebuttable presumption of causality, provided under Section 113-B operates against the accused.

3. Section 304B states that where the death of a woman is caused by any burns or bodily injury or occurs otherwise than under normal circumstances within seven years of her marriage and it is shown that soon before her death she was subjected to cruelty or har­assment by her husband or any relative of her husband for any demand for dowry, such death shall be called “dowry death”.

The phrase “soon before”, the court said, cannot be construed to mean ‘immediately before’. The prosecution must establish the existence of “proximate and live link” between the dowry death and cruelty or harassment for dowry demand by the husband or his relatives.

4. Section 304-B does not take a pigeonhole approach in categorizing death as homicidal or suicidal or accidental. The reason for such non categorization is due to the fact that death occurring “otherwise than under normal circumstances” can, in cases, be homicidal or suicidal or accidental.

5. Due to the precarious nature of Section 304-B read with 113-B of the Evidence Act, Judges, prosecution and defence should be careful during conduction of trial.

6. It is a matter of grave concern that, often, Trial Courts record the statement under Section 313, CrPC in a very casual and cursory manner, without specifically questioning the accused as to his defense. It ought to be noted that the examination of an accused under Section 313 CrPC cannot be treated as a mere procedural formality, as it is based on the fundamental principle of fairness. This aforesaid enables the accused to offer an explanation for the incriminatory material appearing against him.

7. The Court must put incriminating circumstances before the accused and seek his response.

8. Section 232 of CrPC provides that, “If, after taking the evidence for the prosecution, examining the accused and hearing the prosecution and the defence on the point, the Judge considers that there is no evidence that the accused committed the offence, the Judge shall record an order of acquittal”. Such discretion must be utilized by the Trial Courts as an obligation of best efforts.

9. Once the Trial Court decides that the accused is not eligible to be acquitted as per the provisions of Section 232 of CrPC, it must move on and fix hearings specifically for ‘defence evidence’, calling upon the accused to present his defense as per the procedure provided under Section 233 which is also an invaluable right provided to the accused.

10. In the same breath, Trial Courts need to balance other important considerations such as the right to a speedy trial. In this regard, we may caution that the above provisions should not be allowed to be misused as delay tactics.

The court urged the courts and lawyers to follow these guidelines while conducting a dowry death trial.

The judgment may be read here:

Related:

SC on Dowry Death: No conviction if unnatural death not established
Not residing with woman does not absolve in-laws of liability in dowry-death cases: Madras HC
Bombay HC acquits husband accused of cruelty and abetment to suicide of wife

The post Dowry death cases: SC observes casual approach of trial courts, issues guidelines appeared first on SabrangIndia.

The Madhya Pradesh High Court has directed Magistrates to release such persons from custody in cases where the guidelines in the Arnesh Kumar judgement were not followed.

The bench of Chief Justice Mohammad Rafiq and Justice Atul Sreedharan had taken cognisance of the overcrowded jails in the state on May 7. The bench had passed orders for releasing prisoners as per the Supreme Court’s directive that they should be released as per the  High Powered Committee’s (HPC) guidelines from last year for 90 days.

The amicus curiae Adv. Sanklap Kochar and Senior Advocate CU Singh submitted before the bench that despite the latest recommendations of the HPC after their May 12 meeting, there are still 45,582 prisoners across jails in the state as against their total capacity of 28,675. They both suggested that the HPC ought to consider recommending release of all such convicts on parole, who have either served out one-third of the substantive sentence awarded to them or if sentenced to life imprisonment, have completed incarceration of seven years or more.

They also suggested that the HPC should also consider recommending release of all women prisoners, both convicts and under-trial, regardless of the offence for which they have been convicted and the sentence awarded to them or the maximum sentence that may be awarded to them upon conviction. In response to this suggestion, the Additional Advocate General (AAG) and the Director General of Prisons stated that they will collate the data under all these three categories and provide the same to the HPC within 3 days.

CU Singh and Sankalp Kochar also submitted that the police are not following guidelines of arrest as laid out by the Supreme Court in Arnesh Kumar vs. State of Bihar and another (2014) 8 SCC 273. To this, the court responded, “This explains why there was an enormous increase of approximately 8,000 under-trial prisoners in different jails of the State during the period of lockdown even after release of about 7,500 prisoners-convicts on parole and UTPs on interim bail”. The AAG submitted that he would seek instructions on whether or not the Arnesh Kumar guidelines were being followed.

In Arnesh Kumar judgement, the apex court had observed that the law mandates for the police officer, before making an arrest should record his satisfaction as mandated by Section 41of CrPC that the arrest is necessary:

(i) to prevent such person from committing any further offence;

(ii) for proper investigation of the offence;

(iii) to prevent such person from causing the evidence of the offence to disappear or tampering with evidence;

(iv) to prevent such person from making any inducement, threat or promise to any witness from disclosing facts to the court or to the police officer &

(v) and that unless such person is arrested, his presence in the court when required cannot be secured.

The court had further stated that if in his opinion, the arrest does not satisfy the requirements of Section 41 of the Code, the Magistrate is duty-bound not to authorize his further detention and release the accused after recording his own satisfaction. The apex court had also highlighted the importance of Section 41-A of CrPC which provided that where arrest was not required, the police officer should issue a notice directing the accused person to appear before him at a specific place.

The details of the Arnesh Kumar judgement may be read here.

The Supreme Court deprecated the practice of mechanically reproducing in the case diary all or most of the reasons contained in Section 41 of the Code for effecting arrest. The Supreme Court observed that it seems that police has not learnt its lesson; the lesson implicit and embodied in the Code and is persisting with its colonial approach despite six decades of independence, as the power of arrest is being used as a tool of harassment and oppression of the citizen, which is “one of the lucrative sources of police corruption”.

The bench pointed out that “all these directions issued by the Supreme Court were intended to put a check on the arbitrary power of police in mechanically arresting a citizen accused of committing offences of rather lesser gravity, either without adequate sensitivity or with oblique motive.”

The court, thus, directed the DGP to immediately issue fresh directions to all the Police Stations in the State to adhere to the guidelines issued by the Supreme Court in Arnesh Kumar judgement in letter and spirit. The court also directed all the Judicial Magistrates, upon the accused being produced before them by the police for authorizing further detention, shall mandatorily examine whether or not stipulations contained in both Sections 41 and 41A of the Code, have been followed.

The court stated that if the Magistrate is satisfied that the mandate of both or any of those provisions has not been complied with by the police, he/she shall refuse to authorise further detention of the accused and shall direct immediate release of the accused. More significantly, the court ordered thus,

“if any arrest has been made without adherence to the aforesaid guidelines, the accused concerned would be entitled to directly apply to the court of competent jurisdiction for his regular bail on this ground alone.”

The court also directed the Registrar to again circulate the copy of the judgment of the Supreme Court in Arnesh Kumar judgement along with a copy of this order to all the District Judges of the State, for being served upon the Judicial Magistrates. Further, the court directed the Director of the State Judicial Academy to organise online/virtual programme for sensitising Magistrates and police officers accordingly. The court put the onus on the Director of the state’s police academy to coordinate with the Director of State Judicial Academy to work out the modalities for sensitising the police officers and put the onus on the DGP for compliance.

The amicus curiae and Adv. CU Singh also brought to the court’s attention the order passed by the apex court in its suo moto case of last year, whereby all the Juvenile Justice Boards (JJB) and Children’s Courts were directed to proactively consider whether a child or children should be kept in the Child Care Institutions considering the best interest, health and safety concerns. This included directing JJBs to consider releasing children alleged to be in conflict with law, residing in Observation Homes, on bail unless there are clear and valid reasons for the application of the proviso to Section 12 of the Juvenile Justice (Care and Protection of Children) Act, 2015.

Accordingly, the court directed Secretary of the MP State Legal Services Authority, Jabalpur to require the Member Secretaries of the respective District Legal Services Authorities to move an appropriate application through their Legal Aid Counsels before the respective Juvenile Justice Boards on behalf of the children in conflict with law, for their release from Observation Homes. The court directed that such applications be decided within 3 days of filing.

The court directed that the copy of the order be forwarded to the Director General of Police, State of M.P., Bhopal; Director General of Prisons, Bhopal; Member Secretary, M.P. State Legal Services Authority, Jabalpur; Director, MP State Judicial Academy, Jabalpur; Director, MP Police Academy, Bhopal and the Registrar General of MP High Court, Jabalpur for necessary action.

The court will hear the case next on May 31.

The complete order may be read here:

Related:

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SC orders re-release of prisoners from jail amid Covid-19 surge
UP govt challenges HC order granting bail on apprehension of contracting Covid-19

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Civil society organisations sent recommendations concerning new Covid-19 restrictions to Maharashtra Chief Minister Uddhav Thackeray in a joint letter on April 6, 2021.

Despite an increasing number of coronavirus cases, members welcomed the government decision not to enforce a complete lockdown and requested a meeting with Thackeray to discuss possible civil society collaborations to effectively address the pandemic situation.

“Your efforts at avoiding any hasty decisions to impose a lockdown and inviting solutions from civil society to deal with the pandemic crisis is highly welcome and appreciated. However, there is not much clarity on the state of crisis faced by migrant workers, daily wage earners and many other workers in the informal sector due to the new restrictions,” said the group whose members were involved in relief work and advocacy last year.

They pointed out that migrant and daily wage workers, the homeless and marginalised groups are badly affected by such restrictions because they no do not have adequate arrangements for food, shelter and other basic amenities. As such, members recommended a decentralised approach by consulting communities through associations, societies and groups of residents in the area.

Community representatives and civil society organisations should be included in the task force and provided movement passes, they recommended. Further, they advised against documentary proofs to avail relief packages in the poor neighborhoods under lockdown.

“Adequate arrangements for food, water and shelter should be put in place before imposing any lockdown conditions. Shivbhojan Yojana should be extended to tahsil and weekly market areas in rural Maharashtra,” they said.

Further, the civil society groups said the Public Distribution System (PDS) should ensure migrant workers’ food security, especially considering that in 2020, many workers with and without ration cards were left to fend for themselves.

“Rations should also be made available to non-ration card holders. There is a need to establish food centres/ banks in every city ward with multiple counters after surveying the ward-wise requirement,” they said.

Members also called for a constant monitoring of the impact of the lockdown restrictions on migrant workers and their livelihood status, to ensure support such as re-establishment of shelters, special protection for hawkers, cash transfers/sustenance, a 24-hour helpline and vaccination centres in populated slums and localities.

In the field of health care, the groups said that the poor citizens often lose out on non-Covid healthcare. Last year, many facilities were diverted for Covid care and the poor were forced to access expensive private hospitals to avail of medical facilities. Similarly, ambulance service should be strengthened and expanded, especially in districts with high case load and in rural/tribal areas.

Regarding the over-Rs. 22,000-crore provisional GST collection that the central government is yet to give to the state government from 2020-21, the 100 and more organisations agreed that the central government should pay a major part of Covid-19-related expenses such as medical and hospitalisation expenses, rations, transport, etc.

Lastly, member organisations called for clarity in guidelines and accountability from enforcement agencies to ensure the most vulnerable such as the informal sector are not targeted. In 2020, Sakinaka’s larger informal manufacturing sector said the police resorted to violence and forcibly shut units by 6:30 PM, despite permission to run at full capacity.

“A situation like this, involving wrongful implementation, unnecessary harassment and use of force, could potentially lead to many units shutting down, resulting in economic hardship,” said the letter.

The full list of recommendations can be viewed seen below:

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Covid-19: One lakh cases in a day, what is the Govt’s plan to combat surge?

Surge in Covid-19 cases has gone “from bad to worse”: Dr. VK Paul 

Covid-19: India records 68,020 new cases registered in the last 24 hours 

Covid-19: Huge spike recorded as 59,118 new cases reported in the last 24 hours

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