SC refuses to stay Parrikar Oat taking ceremony

On March 14^th, 2017, the Hon’ble Supreme Court of India refused to stay the oath taking ceremony of Manohar Parrikar before the Goa Legislative Assembly to be sworn as the Chief Minister of Goa. Furthermore, it ordered a floor test to be held on March 16^th, 2017.

Where it all began

At the completion of Goa Assembly elections on 40 seats, Congress party stood at 17 seats, BJP at 13, Goa Forward Party (GFP) at 3, Maharashtravadi Gomantak Party (MGP) at 3, Independent numbering 3 and NCP at 1. BJP got support from GFP, MGP and two independent MLAs and claimed majority before the Governer of Goa. Mridula Sinha, the Governor of Goa, invited BJP to form the government in the state. Congress filed the petition before the Supreme Court challenging the decision of Mridula Sinha.

Contentions of the Parties

Senior Advocate Abhishek Manu Singhvi, appearing for Congress, contended that the Governor failed to adhere to the mandates of the Constitution of India and acted in a mala Fide and arbitrary manner as he should have invited Congress, i.e., the single largest party in Goa to form the government. They also contended that BJP employed a late-night political maneuver and defeated the mandate of the people which was in favor of Congress.

Senior Advocate Harish Salve, appearing for Mridula Sinha, contended that the Governor was convinced of BJP’s majority while on the other hand, Congress failed to prove its majority. He also stated that the floor test will happen as soon as possible. Moreover, the swearing-in ceremony should go as planned, on 14^th March at 5 p.m.

The Verdict

A three-judge bench led by Chief Justice of India J S Khehar observed that there is no rationale for staying the oath taking ceremony. It further stated that all the formalities required by the Election Commission to be completed by 15^th March and the floor test to prove the majority should be conducted on 16^th March at 11 a.m. Supreme Court cracked down on Congress by pointing out that “The Congress don’t have the numbers or else it would have proven its majority before the Governor. Everything is lacking in their plea and they haven’t approached the Governor to form the government.” It finally directed the parties to appoint a ‘Protem’ speaker to conduct the floor test.

Restitution of Conjugal Rights (Law)

Marriage is a religious sacrament which constitutes the very basis of a social entity.  It is based on duties, rights, affection between husband and wife. But when such affection and togetherness goes into hiding, it is necessary to unearth the same through various matrimonial remedies one of which is the restitution of conjugal rights. The word ‘restitution’ refers to restoration and ‘conjugal’ refers to marriage or relating to it, i.e., comfort and affection of the spouses towards each other. When the relation goes haywire, people leave their partners in the heat of the moment or ongoing callousness. If any of the spouses leaves his/her counterpart or withdraws from the society of the other without any reasonable excuse, the latter is entitled to file a petition for the restitution of conjugal rights. The duty of the court is to restore their love and affection by making them live with each other forcefully.

Essentials to be fulfilled:

• The spouse must have withdrawn from the society of another,

• No reasonable excuse for such withdrawal,

• Aggrieved spouse files for restitution of conjugal rights.

Important Points to remember while filing a petition for Restitution of Conjugal Rights:

• Under Hindu Law, the petition is filed under Section 9 of the Hindu Marriage Act, 1955 before the district court.

• Muslims are not adjudged by any specific provisions and are guided by general laws only. Moreover, under Muslim law, a suit is filed before the civil court and not a petition.

• The burden of proof is twofold – first, the petitioner needs to establish that the respondent has left from his/her society and second, the reasonability of the excuse becomes due on the one who left. 

• In reality, it’s not possible to compel the person to start living with his/her corresponding person through a decree of the court. The court can attach the properties of the judgment debtor in order to forcefully execute the decree.

• If the decree remains unexecuted for more than one year, it becomes a valid ground for divorce under Section 13(1A) of the Hindu Marriage Act, 1955.

Step-by-Step Petition Filling Process:

1. File the petition before the District Court having territorial jurisdiction in the matter. The copy of such petition would be sent to the respondent.

2. The court would call them for counseling to settle the matter.

3. Counselling may take 4-5 sessions.

4. In the background, the wife may file for legal expenses from her husband under Sec. 24 of the Hindu Marriage Act, 1955.

5. If accepted by both the parties, the petition for restitution is granted.

Grounds of Rejection of Petition:

• If the petitioner was involved in some kind of matrimonial misconduct. For e.g., adultery, desertion, domestic violence, etc.

• If the respondent has a valid claim to any matrimonial relief.

Misuse of the petition:

Misuse of this remedy is widely in practice where one spouse files such petition for the restitution of conjugal rights with the knowledge that his/her counterpart would not agree for the restoration of such comfort and cohabitation. Subsequently, it becomes a legal excuse for divorce.

Statutory law References:

Section 9, 13(1A) & 24 of the Hindu Marriage Act, 1955

Important Judgments:

Saroj Rani v Sudarshan Kumar Chadha AIR SC 1984 1562

T. Sareetha v. T. Venkatasubbaiah A.I.R. 1983 A.P. 356

Do(s) and Don't(s):

• If you (husband) face the threat of Sec. 498A of IPC, don’t file for restitution of conjugal rights.

• If the petition has been rejected, it is better to file for divorce.

SC’s landmark decision to Protect Online Freedom of Speech

Before 2015, no sane person would have thought that the knees of Section 66A of the Information Technology Act, 2000 would go weak and that too against one of the most powerful persons of Maharashtra. In March 2015, Supreme Court of India struck down Sec. 66A which restricted the freedom of speech and expression under Art. 19(1)(a) while upholding the people’s right to know.

How it all began

In 2012, two girls allegedly posted some negative comments against the total shutdown in Mumbai in pursuance to the death of Shiv Sena leader the late Bal Thackeray. After their arrest, a Bristol University astrophysics graduate, Shreya Singhal, filed a PIL before the Supreme Court of India where she challenged the undue restrictions on online speech which had been acknowledged under Sec. 66A of the Information Technology Act, 2000.

Section 66A reads as follows: “Any person who sends by any means of a computer resource-

a)      any information that is grossly offensive or has a menacing character; or

b)      any information which he knows to be false, but for the purpose of causing annoyance, inconvenience, danger, obstruction, insult shall be punishable with imprisonment for a term which may extend to three years and with fine.”

Contentions of the Parties to the Case

Section 66A was not originally enacted with the statute of 2000 but inserted by way of 2009 amendment. The petitioner’s contention circled around the fact that restrictions under Sec. 66A are in clear violation of the right to free speech and expression enshrined under Art. 19(1)(a) of the Constitution. Causing of annoyance, hatred, danger, obstruction, insult, ill-will, insult, criminal intimidation, injury, inconvenience are not hit by the conditions of Art. 19(2). The public has the right to know various kinds of views on a particular topic. However, it was countered by the respondents with the contention that the legislature is in the best position to understand and cater to the needs of the people.

The Judgment

The Apex Court placed focus upon what is the content of “freedom of speech and expression”. It stated three concepts in this regard – first is a discussion, second is advocacy and third are incitement. Discussion and advocacy form the core of Art 19(1)(a) but when it effects incitement, Art. 19(2) comes into play. However, what may be offensive to one may not be to other. It observed that the whole discussion centered around public disorder and ‘reasonable restrictions’ can be interpreted on the lines of Chintaman Rao v. State of Madhya Pradesh, [1950] S.C.R. 759, Mohd. Faruk v. State of Madhya Pradesh & Ors., [1970] 1 S.C.R. 156. It also stated that written words causing inconvenience, danger, annoyance, etc. does not count as an offense itself and are vague and overbroad. The court further observed that it is bound by the law laid down in Ram Manohar Lohia’s case [1960] 2 S.C.R. 821 and held that “Section 66A is unconstitutional also on the ground that it takes within its sweep protected speech and speech that is innocent in nature and is liable therefore to be used in such a way as to have a chilling effect on free speech and would, therefore, have to be struck down on the ground of overbreadth.” The bench of Justice J Chelameswar and Justice Rohinton F Nariman further supplemented their findings by stating that government’s assurance to prevent misuse of the provision will not matter as governments come and go.

Surprisingly, a data released by National Crime Records Bureau (NCRB) in 2015 showed that 2,402 people were arrested under Sec. 66A in 2014.

Right to be forgotten- Kerala High Court asks Indian Kanoon to remove name of the rape victims from Judgements

In 2017, a rape victim filed a petition before the Kerala High Court to pass an order directing the online web portal ‘indiankanoon.com’ to strike off her name published in a Kerala High Court judgment on its website and also prevent her name from being visible in the search results of Google, Yahoo, etc.

Facts:
The name of the rape victim appeared online on ‘indiankanoon.com’ in the judgment of the Kerala High Court which was passed in regards to her. Moreover, the judgment appeared in the general search results of Google and Yahoo.

Legal Contention:
She stated that the publication of her name was without authorization/prior permission from the court or her which is in clear contravention of the mandate provided under Rule 5 of the Information Technology (Reasonable Security Practises and Procedures and Sensitive Personal Data or Information) Rules, 2011. Her grievance extended to the search results of Google and Yahoo.
According to her, the publications violated her right to privacy and right to a dignified life enshrined under Art. 21 of the Constitution of India as it has diminished her job prospects and social life which has brought upon further shame and destitution upon her. Furthermore, the essence of Section 228A of IPC is also diluted.

Section 228A of the Indian Penal Code:
Under Section 228A of IPC, disclosure of the identity of a rape victim may amount to two years imprisonment and fine. She also contented her ‘right to be forgotten’. In State of Karnataka v. Puttaraja AIR 2004 SC 433, the Apex Court of India held that the names of the rape victims should not be mentioned in court cases keeping in mind the social object of preventing social victimization or ostracism of the victim and hence, in line with Sec. 228A.

What is “Right to be Forgotten”?
The roots of this phrase ‘Right to be Forgotten’ can be traced back to the ‘Right to Oblivion’ in French Jurisprudence. The rationale of such a principle was to give an opportunity to the offenders to object against the publication in regards to their crimes and strike off their names for an effective social integration. This right went into practice in the European Union and Argentina as well and has been seen as a tool for social integration and development of a person. In Vasunathan v. Registrar General, 2017 SCC OnLine Kar 424, Karnataka High Court, while directing its registry to remove the name of the victim from being reflected in the public domain, observed, “This is in line with the trend in Western countries of ‘right to be forgotten’ in sensitive cases involving women in general and highly sensitive cases involving rape or affecting the modesty and reputation of the person concerned.”
Recently, a tussle has been going on between France and Google over the ‘right to be forgotten’ where France is trying to impose such rule upon Google to censor its search results. In India, there are no provisions under Information Technology Act, 2000 or any other statutes which prevents Google or any other search engine to enforce the ‘right to be forgotten’ as the scope of public domain is pretty scary. It will wrangle anything out from the world. To prevent such anomalies, the weapon of Judicial Activism is a requirement.

Order
Recognizing the ‘right to be forgotten’ and confidentiality of her identity under Sec. 228A of IPC, Justice Shaji P. Chaly of the Kerala High Court directed the web portal indiankanoon.com to remove her name from its website. However, no such direction has been passed towards Google and Yahoo.

AIBA recommends Radical Reforms in Judiciary

The 11-point Radical List:
All India Bar Association (AIBA) chairman, Adish C Aggarwala, submitted a reformatory 11-points suggestion list to the Prime Minister Mr. Narendra Modi and former Chief Justice of India Mr. H. L. Dattu in the month of April 2015. It was given as a radical tool to pump up judiciary’s functional efficiency.
The noteworthy points of the Charter were –
• Financial independence of Judiciary is given so that it is not dependent on the government to expand infrastructure.
• In regards to National Judicial Appointments Commission (NJAC), the two eminent personalities in question should never be amongst lawyers, judges, and judiciary. Moreover, the Committee of Prime Minister, Chief Justice of India and the Leader of Opposition should appoint those two eminent personalities to ensure their independence and impartiality.
• The appointment to the Supreme Court as a Judge should be driven by proportional representation of the Indian states in accordance with their population.
• Only sitting judges should be appointed to Tribunals and Commissions and retired judges should be kept away from such posts. To enable such appointments, sanctioned posts of judges should be increased.
• The retirement age of the judges at all three levels should be increased – from 65 to 68 in the case of a Supreme Court judge, from 62 to 65 for a High Court judge and 60 to 62 for all subordinate judges.
• Seniority should be the only basis for the promotion of a subordinate judge to the High Court and from High Court to Supreme Court. If a judge is not appropriate for such promotion, his employment as a judge should be terminated immediately.
• Four benches of the Supreme Court should be established in the east, west, north-east and south India. Apart from bringing justice to the easy access of the litigants, it would move the justices to places where their relatives are not practicing.
• Appointment of high court judges as Chief Justice of another High Court should be prevented altogether as they are totally dependent upon the local judges for administration.
• Video-graphing of all cases should be mandatory which would subsequently become part of the case file only and would also act as a regulator over the litigants, lawyers, and judges.
• Live broadcast of all the cases should be available on its official website.
• Judicial clerkship of 1 year should be pre-mandated for practicing as a lawyer. The salary for such time period should be Rs 25000/- per month.

The list was submitted with all the relevant details to the above-mentioned points in order to bring transformation in the Indian judiciary.

Your Claim for Child custody

In matrimonial disputes, the question about rightful custody of children may crop up before the court. The court is usually requested to decide the question during the pendency of the trial. It is an important matter to decide as it not only affects the parents but also the children who may feel being pulled up in opposite directions by parties, they probably love equally. The court can exercise its jurisdiction only if it has jurisdiction in the main petition which is pending before the court. If the child is under the age of 5 years, the mother is usually considered as guardian.

Important points while determining the child custody issue: -  

1.      Age and sex of the child.  

2.      The character and capacity of proposed guardian.

3.      Any wishes of deceased parent i.e. specified in a will.

4.      The minor’s preference, if the child is old enough to give an intelligent preference.

5.      The court usually tries to keep children united.

6.    Though the guardianship decisions tend to tilt a lot in favor of the mother, justifiably so, and guardianship of girl child virtually always goes with the mother only, however, if the mother is ill and financially not strong or a disable then usually court deny guardianship on these grounds.

7.       Usually, the children maintenance cost is borne by the father irrespective of the fact that its mother who has been given the child custody.

  

Statutory law references.

1.      Section 26 of Hindu Marriage Act, 1955

2.      Section 38 of the Special Marriage Act, 1954

3.      Section 25 in The Guardians and Wards Act, 1890

Important judgments: - 

1.      Thrity Hoshie Dolikuka Vs. Hoshiam Shavaksha Dolikuka 1982(1)SCALE 608 (Supreme court)

2.      Sheila B. Das Vs.P.R. Sugasree 2006(1)RCR(Civil)758 ( Supreme court) 

3.      Kumar V. Jahgirdar v. Chethana Ramatheertha 2004 ( 3 ) RCR (Civil) 233 (Supreme court)

4.      Roxann Sharma Vs. Arun Sharma 2015(2)RCR(Civil) 93 (Supreme court)

Do: -

1.      Disclose all the facts related to marriage.

2.      Disclose all  the details about the pending cases, if any, to your lawyer

3.      Provide all the details  such as Age, educational expenses, comparative emotional attachment to either parent, physical abuse etc. with your lawyer

4.      Provide details of opposite party i.e. income, status, character, nature etc.  to your lawyer