SC Sets Aside Reappointment of Kannur Uni VC, Cites Kerala Govt’s ‘Unwarranted Interference’

Justice Pardiwala read out a press release from the Raj Bhavan in court which said that the chief minister and higher education minister had initiated the reappointment process.

New Delhi: The Supreme Court on Thursday, November 30, set aside the reappointment of Gopinath Ravindran as the vice-chancellor of Kannur University, saying the Kerala government made “unwarranted interference” in the matter.

Ravindran was the first vice chancellor in the history of the state to be re-appointed.

According to The Hindu, the verdict was delivered by a bench led by Chief Justice of India D.Y. Chandrachud. The top court overturned the Kerala high court’s February 2022 decision which upheld the validity of a November 23, 2021 notification reappointing Ravindran.

In the judgment, authored by Justice J.B. Pardiwala, the Kerala government was accused of “unwarranted interference” in the reappointment process, which led to the chancellor (the state’s governor) abdicating/surrendering his statutory powers.

Justice Pardiwala read out a press release from the Raj Bhavan in court, according to The Hindu, which said that the chief minister and higher education minister had initiated the reappointment process.

According to the Indian Express, the Supreme Court declared, “The impugned judgement and the order passed by the high court dated February 23, 2022 is hereby set aside and as a consequence, the notification dated November 23, 2021 reappointing the respondent number 4 (Ravindran) as the vice chancellor of the Kannur University is hereby set aside.”

A Kerala high court division bench had on February 23, 2022 dismissed an appeal against a single-judge order upholding Ravindran’s re-appointment. It said the appointment was in accordance with the law and that he was not “an usurper to the post”.

The high court’s decision came in a quo warranto writ petition filed by a member of Kannur University’s senate another person is a member of the Academic Council (Management Studies), Kannur University. According to The Hindu, they claimed the reappointment was not based on the independent evaluation or consideration of the contributions of Ravindran but instead at the state government’s request.

The newspaper reported that the Supreme Court’s decision was welcomed by the Kerala Students Union (KSU), whose vice president P. Mohammad Shammas said it is a “blow to the arrogance of the Pinarayi Vijayan-led government”. He praised the judicial system as the “last hope” for the survival of the higher education sector.

Trend of Governors Acting on Bills Only After State Governments Approach Courts Must Stop: SC

CJI Chandrachud made this oral observation while hearing a writ petition filed by the Punjab government challenging the inaction of governor Banwarilal Purohit on seven Bills.

New Delhi: The Supreme Court on Monday, November 6, expressed anguish that state governments have to approach the courts to get governors to act on Bills passed by the legislature. The top court made this oral observation while hearing a writ petition filed by the Punjab government challenging the inaction of governor Banwarilal Purohit on seven Bills.

According to LiveLaw, Chief Justice of India D.Y. Chandrachud orally said that the trend of governors acting on Bills only after the government approaches the court must stop

He said this in response to solicitor general Tushar Mehta informing the bench that governor Purohit took “appropriate decisions” on some Bills and would convey the details by Friday (November 10).

The CJI said, according to LiveLaw:

“Why does the party have to come to the Supreme Court? Governors act only when matters reach the Supreme Court. This has to stop. You come to Supreme Court then the Governor starts acting. This shouldn’t be.”

He pointed out that a similar situation had occurred in the past in Telangana, when the governor acted on the pending Bills only after the government filed a writ petition in the top court.

“Governors should not be oblivious of the fact that they are not elected authorities,” the CJI stated.

Senior advocate Abhishek Manu Singhvi, appearing for the Punjab government, said Bills that the governor did not act on included those on fiscal management and amendments to GST, affecting governance. To this, the CJI said:

“Little bit of soul searching needed from Chief Minister and Governor. Governor must know that he is not an elected representative… He can withhold assent and send it back once.. This is particularly on money bills … Why should parties be required to move the Supreme Court for convening the House? … We are the oldest democracy and these issues must be sorted between the Chief Minister and the Governor.”

The bench, also comprising Justices J.B. Pardiwala and Manoj Misra, agreed to hear similar petitions filed by the Kerala and Tamil Nadu governments also on Friday.

Acquitting a Death-Row Convict, SC Lays Down Guidelines on Admissibility of Dying Declarations

A three-judge bench held that courts should always be on guard to see that the statement of the deceased was not a result of tutoring or prompting or a product of imagination. 

New Delhi: The Supreme Court, on Wednesday, August 23, laid down elaborate and clear guidelines on the admissibility of dying declarations while acquitting a death-row convict by giving him the benefit of the doubt.

A three-judge bench, comprising Justices B.R. Gavai, J.B. Pardiwala and Prashant Kumar Mishra, in Irfan@Naka vs the State of Uttar Pradesh held that the court should always be on guard to see that the statement of the deceased was not a result of tutoring or prompting or a product of imagination. 

The judgment, authored by Justice Pardiwala, came in a case in which a resident of Bijnore in Uttar Pradesh was convicted of setting his son and two brothers on fire while they were sleeping – because of personal animosity. Both the Bijnore additional sessions judge and the Allahabad high court had confirmed the conviction and death sentence of the appellant-convict. 

However, the top court concluded that the prosecution was not able to prove beyond reasonable doubt that it was only and only the appellant-convict who set the room on fire by pouring an inflammable substance.

Because the dying declarations of two of the deceased – the convict’s son and one of his brothers – played a crucial role in the conviction, the judgment dives into the admissibility of such declarations.

The justification for the sanctity/presumption attached to a dying declaration is two-fold: First, ethically and religiously it is presumed that a person while at the brink of death will not lie, and second, from a public policy perspective it is to tackle a situation where the only witness to the crime is not available.

The bench held that dying declarations, while carrying a presumption of being true, must be wholly reliable and inspire confidence. Where there is any suspicion over the veracity of the same or the evidence on record shows that the dying declaration is not true, it will only be considered as a piece of evidence but cannot be the basis for conviction alone, it added.

The bench clarified that there is no hard and fast rule for determining when a dying declaration should be accepted. The duty of the court is to decide this question in the facts and surrounding circumstances of the case and be fully convinced of the truthfulness of the same.

Certain factors can be considered to determine the same, the bench held, adding that they will only affect the weight of the dying declaration and not its admissibility. These factors, the bench said, are:

(i) Whether the person making the statement was in expectation of death?
(ii) Whether the dying declaration was made at the earliest opportunity? “Rule of First Opportunity”
(iii) Whether there is any reasonable suspicion to believe the dying declaration was put in the mouth of the dying person?
(iv) Whether the dying declaration was a product of prompting, tutoring or leading at the instance of police or any interested party?
(v) Whether the statement was not recorded properly?
(vi) Whether the dying declarant had the opportunity to clearly observe the incident?
(vii) Whether the dying declaration has been consistent throughout?
(viii) Whether the dying declaration in itself is a manifestation/fiction of the dying person’s imagination of what he thinks transpired?
(ix) Whether the dying declaration was itself voluntary?
(x) Whether, as per the injuries, it would have been impossible for the deceased to make a dying declaration?

It is the duty of the prosecution to establish the charge against the accused beyond a reasonable doubt; and the benefit of doubt must always be in favour of the accused, the bench held. It is true that a dying declaration is a substantive piece of evidence to be relied on – provided it is also proved that the same was voluntary and truthful and the victim was in a fit state of mind. It is just not enough for the court to say that the dying declaration is reliable as the accused is named in the dying declaration as the assailant, the bench explained.

It is unsafe to record the conviction on the basis of a dying declaration alone in the cases where suspicion, like the case on hand, is raised, as regards the correctness of the dying declaration, the bench held. In such cases, the court may have to look for some corroborative evidence by treating the dying declaration only as a piece of evidence; the evidence and material available on record must be properly weighed in each case to arrive at an appropriate conclusion, the bench clarified.  

“The reason why we say so is that in the case on hand, although the appellant-convict was named in two dying declarations as the person who set the room on fire, yet the surrounding circumstances render the statements of the declarants very doubtful,” the bench concluded.

The judgment cites the 1974 Dharam Das Wadhwani vs State of Uttar Pradesh verdict by Justice Krishna Iyer, which held that the rule of benefit of reasonable doubt does not imply a frail willow bending to every whiff of hesitancy. Judges are made of sterner stuff and must take a practical view of the legitimate inferences flowing from the evidence, circumstantial or direct.

Even applying this principle, we have a doubt as regards the complicity of the appellant-convict in the crime,” the order by Justice Pardiwala pointed out.  

Prosecution Witness[PW]-2 has been otherwise also not believed by the High Court.  It is difficult to rest the conviction solely based on the two dying declarations.  The oral evidence of the PW-4 Soni also does not inspire any confidence,” the bench further added. 

The Supreme Court of India. Credit: Subhashish Panigrahi/Wikimedia Commons. CC by SA 4.0

Facts of the case

The appellant-convict was married twice. The first marriage was with a lady, who was the daughter of his uncle (PW-1). His second marriage was solemnised with another lady. One son by the name of Islamuddin – who was killed in the fire – was born in wedlock with his first wife.

The convict had two brothers, namely, Irshad and Naushad – both of whom were also killed – and who lived along with him and his sister Soni (PW-4). Another brother by the name Shanu alias Shahnawaz (PW-2) of the convict lived in the neighbourhood.

According to the prosecution, the three deceased persons more – particularly Islamuddin (the convict’s son) – were highly opposed to the second marriage of the appellant-convict. Islamuddin was even once beaten by the appellant-convict as he had offered a lot of opposition to the second marriage of his father. The two deceased brothers had also defended Islamuddin’s opposition to the second marriage of the appellant, the prosecution said. 

On August 6, 2014, at around 12:30 am, the PW-2 – another brother of the convict – is said to have woken up to see flames and smoke coming from the room where the deceased persons were sleeping. The PW-2 and his sister Soni (PW-4) claim to have seen the appellant-convict setting the room on fire and thereafter, fastening the door latch from outside and running away. While PW-4 lives in the same house as the convict, PW-2 claimed he was there to have dinner with PW-4 and the deceased persons.

The prosecution claimed that the PW-2 and PW-4 opened their doors and saw the appellant-convict running from the roof towards the stairs. According to the case of the prosecution, two other persons – who were not examined – also saw the appellant-convict running away. 

“We find it very difficult to believe that the appellant-convict was still inside the room or even outside the room to be witnessed by the deceased persons as well as by the PW-2 and PW-4, locking the room from outside after setting the room on fire,” the court said.

According to the bench, the conduct of the accused might be “unnatural” but such conduct, which may be a relevant factor under Section 8 of the Indian Evidence Act “by itself may not be sufficient to hold a person guilty of the offence of murder”. 

Had the dying declarations stood corroborated by the oral evidence of PW-2 and PW-4, then probably, it would have been altogether a different scenario. However, the bench found that the two dying declarations were not consistent or rather contradictory to the oral evidence on record. 

Money Laundering Case: SC Dismisses Rana Ayyub’s Challenge to Ghaziabad Court Summons

The court rejected the journalist’s argument that the Uttar Pradesh court had “absolutely no jurisdiction” since “no part of the alleged offence was committed in the state”.

New Delhi: The Supreme Court on Tuesday, February 7, dismissed journalist Rana Ayyub’s plea challenging the summons issued by the Ghaziabad special court in an alleged money laundering case relating to misuse of money raised through crowdfunding for COVID-19 relief work.

While the journalist had challenged the Ghaziabad’s court summons against her on the ground of jurisdiction, a bench of Justices V. Ramasubramanian and J.B. Pardiwala said the Prevention of Money Laundering Act provides a wide remit about alleged offences.

According to LiveLaw, senior advocate Vrinda Grover, appearing for Ayyub, argued that the Uttar Pradesh court had “absolutely no jurisdiction” since “no part of the alleged offence was committed in the state and that the alleged proceeds of crime are in an account maintained in Navi Mumbai”.

The bench rejected this argument but left it open for Ayyub to raise the issue before the trial court.

“Under Section 3 of the PMLA, the place where any of six activities or processes are carried out – concealment, possession, acquisition, use, projecting as untainted property, claiming as untainted property – the offence of money laundering is said to have taken place. Navi Mumbai, where the bank account is located, is the destination where the proceeds of crime have reached, if at all,” said Justice Ramasubramanian, who pronounced the verdict.

He added, “The question as to whether any one or more of the six activities have taken place question of fact which has to be decided based on evidence. Therefore, we leave it open for this issue to be raised before the trial court. Petition dismissed.”

The top court had reserved its verdict in the matter on January 31.

According to the news agency PTI, Ayyub’s petition had sought quashing of the proceedings initiated by the Enforcement Directorate (ED) in Ghaziabad citing lack of jurisdiction as the alleged offence occurred in Mumbai.

However, solicitor general Tushar Mehta, who appeared for the ED, contended that the prosecution complaint was filed in the Ghaziabad court by the probe agency as part of the cause of action had arisen in Uttar Pradesh, where a lot of people contributed to the crowdfunding campaign.

He said the money laundering offence is not an independent offence and is connected to a scheduled offence, for which an FIR was lodged in the Indirapuram police station of Ghaziabad.

Background

On November 29 last year, the special PMLA court in Ghaziabad had taken cognisance of the prosecution complaint – the equivalent of a chargesheet – filed by the ED and summoned Ayyub.

The special court said the journalist’s alleged crime involved taking money illegally from the general public via an online crowdfunding platform in three campaigns, “raising a huge sum in the bank account of her sister and father, and transferring it into her own bank account which was not used for the intended purpose”.

The ED has accused Ayyub of cheating the public and using Rs 2.69 crore she got in charity for creating personal assets, and also violating the foreign contribution law.

The journalist, a well-known critic of the Narendra Modi government, has denied all the allegations. “I am confident that this abuse of process by the ED will not withstand judicial scrutiny. I too will not be deterred from performing my role as a journalist,” she said.

Congress Leader Moves SC Seeking Review of Order Upholding 10% EWS Reservation

The plea says that the forward caste population is only 6% of the country’s population, yet 10% of seats in government educational institutions and jobs will be provided to the ‘poor of the forward caste’ due to the EWS quota.

New Delhi: A plea was filed in the Supreme Court on Wednesday seeking a review of its verdict upholding the 10% quota introduced in 2019 for the economically weaker sections (EWS) among the general category in admissions and employment to government institutions.

Congress leader Jaya Thakur filed the petition in the apex court, saying that while reservation for the Scheduled Castes and Scheduled Tribes is in proportion with their population, reservations for Other Backward Classes are insufficient but the quota for the upper castes is “disproportionally far above the need”.

On November 7, a five-judge constitution bench of the top court upheld the quota. The bench delivered a 3:2 majority decision in favour of the 103rd Constitution Amendment, which provided the EWS quota. Justices Dinesh Maheshwari, J.B. Paridwala and Bela M. Trivedi formed the majority opinion and authored three separate judgments. Justice Ravindra S. Bhat authored the minority view, which was supported by then Chief Justice of India U.U. Lalit.

According to LiveLaw, the plea seeking a review petition says that the forward caste population is only 6% of the country’s population yet 10% of seats in government educational institutions and jobs will be provided to the ‘poor of the forward caste’ due to the EWS quota.

“The numbers clearly shows that this reservation of 10% is disproportionate and there is no grounds or justification whatsoever for arriving at this figure of 6%. The 10% reservation provided to the EWS of only forward caste, is breach of equality code amounting to discrimination,” the plea says.

Giving the example of Madhya Pradesh, the plea argues that though OBCs constitute more than 50% of the state’s population, only 13% of the posts in state services and educational institutions are reserved for these communities. The reservations for the SC and ST communities are in proportion with their share of the population, the plea says.

Thakur has also argued that because of OBCs, SCs and STs are not entitled to take the benefits of the EWS reservation, it is a clear violation of Articles 14 (equality before the law) and 16 (equality of opportunity) of the constitution of India.

Also Read: ‘Exclusionary, Strikes Death Knell to Equality’: Key Quotes from Justice Bhat’s Dissenting Opinion

The plea seeking a review has also countered assertions made by the judges in the majority. According to LiveLaw, the plea says that Justice Dinesh Maheshwari “gave a contrary finding that 103rd amendment is not violating the limit of 50%, which is in fact a complete violation of the law settled in the Indira Sawhney case”, which capped caste-based reservation at 50%.

“Also, Justice Maheshwari’s finding that the exclusion of SC/ST/OBC from the 103rd Amendment does not violate equality, is completely problematic because the yardstick for the same is one’s economic basis only,” the plea argues.

“Justice [Bela M.] Trivedi, while upholding the 103rd amendment stated that a re-visit into the reservation policy is necessary, which is contrary to her own findings in the judgement,” the plea states, according to LiveLaw.

Meanwhile, Justice J.B. Pardiwala’s judgment notes that Dr B.R. Ambedkar wanted to place a time limit on reservations, which the plea says is incorrect.

(With PTI inputs)

Kathua Rape and Murder: SC Sets Aside Order Which Declared One Accused as Juvenile

“We welcome the judgement of the Supreme Court, and we are hopeful that we will finally get complete justice as Shubam Sangra is the main accused in the case,” the girl’s family said.

New Delhi: The Supreme Court on Wednesday directed that one of the accused in the 2018 Kathua rape and murder case of a minor girl be tried as an adult, setting aside orders by the Kathua chief judicial magistrate (CJM) and the Jammu and Kashmir high court which held him a juvenile.

A bench comprising Justices Ajay Rastogi and Justice J.B. Pardiwala allowed the appeal filed by the Union Territory of Jammu and Kashmir against the orders of the CJM and the high court. The accused can now be identified as Shubam Sangra.

The case triggered a nationwide outrage when the minor was found murdered on January 17, 2018. After initial hiccups, the case was handed over to the Jammu and Kashmir Crime Branch on January 27 of the same year, which said the girl was kidnapped and brutally raped for four days before being strangulated to death.

According to the chargesheet in the case filed by the Crime Branch, Sangra was instrumental in the abduction, gang rape and killing of the child. Eight people, including Sangra, were accused in the case.

“It is held that the respondent accused was not a juvenile at the time of the commission of the offence and should be tried the way other co-accused were tried in accordance with the law,” Justice Pardiwala said, reading out the operative portion of the order, according to LiveLaw.

“Medical opinion regarding age in absence of any other conclusive evidence should be considered to determine the age range of the accused…Whether medical evidence can be relied upon or not depends on the value of evidence,” the bench said.

The court held that medical opinion regarding the age of an accused cannot be “brushed aside” in the absence of any statutory proof on the same issue.

The investigation was backed by a report from a board of medical experts that determined Sangra’s age as not less than 19 and not more than 23 on January 10, 2018, when the brutal assault took place.

The report by specialists from different departments, including a physiologist, dental examiner, radiologist and forensic scientist, based its conclusion on various clinical tests as well as Sangra’s physical appearance.

Family hopes for justice

The family of the eight-year-old girl, which belongs to the Bakerwal nomadic tribe, welcomed the Supreme Court judgement on Wednesday. Mohammed Yusuf, who had adopted the minor, and Mohammed Akthar, her biological father, said the verdict generated hope of complete justice.

“We welcome the judgement of the Supreme Court, and we are hopeful that we will finally get complete justice as Sangra is the main accused in the case,” Yusuf said.

Yusuf and Akhtar, who are relatives, reached Samba district along with their families over a fortnight back after spending six months in search of greener pastures in the Kargil district of Ladakh.

“We did not get complete justice so far as some of the convicted persons are already out on bail over the past year,” Akhtar said, referring to the release of former sub-inspector Anand Dutta and head constable Tilak Raj by the Punjab and Haryana high court, which suspended the rest of their sentences pending an appeal.

Yusuf said they were dejected by certain developments, including the release of the culprits on bail, but the latest verdict came as a major relief for them as “we feel the victim will get justice finally”.

On February 7, 2020, the top court stayed the proceedings before the Juvenile Justice Board against Sangra after the Jammu and Kashmir administration claimed that the high court had erroneously affirmed the order of a trial court holding him as a juvenile at the time of the offence in 2018.

The administration had said the medical board constituted by the high court by its order of February 21, 2018 had opined that the accused was aged between 19 and 23 years at the time of the offence.

The top court on May 7, 2018 transferred the trial of the case from Kathua in Jammu to Pathankot in Punjab and ordered a day-to-day trial after some lawyers prevented the Crime Branch officials from filing a chargesheet in the sensational case.

The special court on June 10, 2019 sentenced three men to life imprisonment till their last breath for the ghastly crime.

Sanji Ram, the mastermind and caretaker of the devasthanam (temple) where the crime took place in January 2018; Deepak Khajuria, a special police officer, and Parvesh Kumar, a civilian – the three main accused – were spared the death penalty, a punishment sought by the prosecution during the year-long in-camera trial in the court.

The other three accused – sub-inspector Anand Dutta, head constable Tilak Raj and special police officer Surender Verma – were convicted for destruction of evidence to cover up the crime and handed down five years in jail and a Rs 50,000 fine each.

The trial court had acquitted the seventh accused Vishal Jangotra, son of Sanji Ram, giving him the ‘benefit of doubt’.

Kathua

Children take part in a protest against the rape of an eight-year-old girl, in Kathua, near Jammu and a teenager in Unnao, Uttar Pradesh state, in New Delhi. Photo: Reuters/Cathal McNaughton/File

Application for birth certificate unravelled claim 

A shoddily drafted application for a birth certificate was the loose string that led to the unravelling of the conspiracy to proclaim Sangra as a juvenile.

The inconsistencies in dates and false information in the application for a birth registration certificate filed by Sangra’s father on April 15, 2004 were crucial in nailing the lie.

The application at the tehsildar’s office in Hiranagar, Jammu, was filed by Sangra’s father who wanted the birth registration certificates of his three children. The eldest, a boy, whose date of birth was stated to be November 23, 1997, a daughter said to be born on February 21, 1998, and Shubam Sangra on October 23, 2002, police said.

The difference in the birthdays of the two elder children was just two months and 28 days, “which by any medical standard is impossible”, the affidavit states.

This, it says, indicates the father’s casual approach in furnishing the particulars of the dates of birth.

Moreover, no place of birth was mentioned for the older two, but Shubam Sangra was stated to be born in a Hiranagar hospital. A subsequent investigation to test the veracity of that statement did not bear that out, officials said.

A special investigation team sent a questionnaire to the Hiranagar block medical officer and asked for records of Sangra’s birth along with the particulars of the parents. The block medical officer verified the record and categorically stated that no delivery in the name of Sangra’s mother had taken place on October 23, 2002, police said in the affidavit before the apex court.

“…in fact these entries were imaginary, and without any supporting birth record of either Municipal Committee or Primary Health Centre where the birth of the respondent (juvenile) is stated to have taken place,” it said.

The Crime Branch chargesheet detailed Sangra’s alleged involvement in the horrific crime. It said Sangra was responsible for an overdose of sedatives forcibly administered to the eight-year-old, rendering her “incapacitated” to resist the sexual assault on her as well as her murder.

“She was forcefully administered five tablets of Clonazepam of 0.5 mg each on January 11, 2018 which is higher than the safe therapeutic dose. Subsequently more tablets were given…The signs and symptoms of an overdose may include drowsiness, confusion, impaired coordination, slow reflexes, slowed or stopped breathing, coma (loss of consciousness) and death,” a medical expert was quoted as saying.

The peak concentration of clonazepam is achieved in the blood after one hour to 90 minutes of oral administration and its absorption is complete, “irrespective of administered either with or without food”, according to the concluding opinion.

Doctors were of the opinion that tablets given to the child could have pushed her into a state of shock or coma.

‘Momentous’: English Editorials Laud SC’s Recognition of Marital Rape in Abortion Verdict

‘In a country where the woman’s body has, more often than not, been a site of the patriarchy index, the Supreme Court’s recognition of her right to equality and, equally significantly, to her agency and choice, is momentous.’

New Delhi: On Thursday, September 29, in a landmark judgment, the Supreme Court ruled that all women, married or not, are entitled to have safe and legal abortions until 24 weeks of pregnancy under the Medical Termination of Pregnancy (ACT).

While delivering the judgment, the bench of Justices D.Y. Chandrachud, J.B. Pardiwala and A.S. Bopanna also held that, under the ambit of the Act, the term “rape” would also include marital rape.

On the question of women’s reproductive rights and autonomy over their bodies, the court observed that any distinction drawn between married and unmarried women is “artificial and constitutionally unsustainable”. And the untenability of this distinction carried forward to the question of rape as well.

“Married women may also form the part of the class of survivors of sexual assault or rape. The ordinary meaning of the word rape is sexual intercourse with a person without consent or against their will. Regardless of whether such forced intercourse occurs in the context of matrimony a woman may become pregnant as a result of non-consensual sexual intercourse performed upon her by her husband,” LiveLaw reported the court as having said.

Also read: Marital Rape Criminalisation: SC Says It Will Hear Pleas Challenging HC’s Split Verdict in 2023

The significant judgment earned the court plaudits from many corners, particularly editorials from leading newspapers in the country.

‘In recognising every woman, married and single, as arbiter of her own body, SC’s abortion judgment is momentous’

“In a country where the woman’s body has, more often than not, been a site of the patriarchy index, the Supreme Court’s recognition of her right to equality and, equally significantly, to her agency and choice, is momentous,” reads the Indian Express’s editorial on the judgment.

Comparing the present judgment to the much talked about overturning of Roe versus Wade (which recognised a woman’s constitutional right to an abortion and legalised it nationwide) by the US Supreme Court in June this year, the Express editorial notes how abortion laws in India have moved towards being more progressive.

While noting that more work remains to be done in this regard, the editorial says that the present judgment will go a long way in opening up the door for the grant of more freedoms.

On the marital rape question, the editorial is more circumspect. It notes that since marital rape has not yet been criminalised in the country, it remains to be seen how the provisions of the judgment will be implemented, given that the top court specified that marital rape is recognised only under the ambit of the MTP Act.

Yet, it concludes on a positive note, lauding the increased agency over their own bodies the judgment provides to women.

‘Well done, SC: Parliament must measure up to court seeking to reform laws on marital rape and divorce’

As noted in its headline, the Times of India editorial puts the onus of expanding on the court’s order on Parliament, noting that it must now “pass better laws” on marital rape, divorce, and other questions of women’s rights. 

The editorial describes the marital rape dimension of the impugned judgment as marking “a huge shift in judicial thought”, saying that it calls into question the Marital Rape Exception (MRE) in the Indian Penal Code (IPC).

Also read: Six Themes That Supreme Court Touched Upon in Verdict on Right to Legal Abortion

While the Times attributes the continuance of the MRE on “judicial prevarication” or “executive inaction/unwillingness” and expresses the hope that it will be struck down, since the case is currently in the Supreme Court, it goes on to lay the blame squarely on the third pillar of democracy, the legislature, noting that Parliament could have changed the law all this while.

The editorial also touches on what the top court’s judgment observed about divorce in India. The court noted that in India, couples are made to point out each others’ faults, even as across the globe, country’s are moving towards ‘no-fault’ divorces. As such, many divorce cases end up with the Supreme Court while they should be resolved at the level of district courts.

While ‘irretrievable breakdown of marriage’ is recognised as a ground for divorce according to the Marriage Laws (Amendment) Bill, 2013, the editorial notes that provisions for no-fault divorces should be included and other laws relating to marriage in the country, too, need to be modified.

‘A landmark for women’s rights’

In its editorial, the Hindustan Times comes down hard on the “arbitrary distinction” drawn between married and unmarried women in the MTP Act, writing that it “stemmed from outdated social mores instead of women’s right to bodily autonomy” and calling its consignment to history an “important moment”.

It also stood up for the legislature in doing so, noting that the fact that Parliament substituted the word “husband” for the word “partner” in the 2021 amendment to the MTP Act, showing that there was no legislative intent to draw the distinction in the first place.

Lauding the court for recognising marital rape, the editorial quoted an important section of the judgment: 

“The nature of sexual violence and the contours of consent do not undergo a transformation when one decides to marry. The institution of marriage does not influence the answer to the question of whether a woman has consented to sexual relations.”

Further, the editorial also recognised the other important dimensions of the judgment, particularly, the recognition of transwomen as women under the ambit of the legislation, and foremost of all, the strong observations of the court towards bestowing greater agency over their bodies to women.

‘Perverse’: SC Sets Aside Madhya Pradesh HC Order Discharging Rape Accused

The impugned order of the high court is utterly incomprehensible, the top court said about the order which discharged the rape accused essentially on the ground of delay in the registration of an FIR.

New Delhi: The Supreme Court has termed as “utterly incomprehensible” an order of the Madhya Pradesh high court discharging an accused of the offence of rape essentially on the ground of delay in the registration of the first information report (FIR).

A bench of Justices D.Y. Chandrachud and J.B. Pardiwala said the facts of this litigation were quite “heart-breaking” and set aside the order of the high court holding that the impugned order could be termed as “perverse and not sustainable in law”.

The verdict was pronounced on August 12 but was yet to be uploaded on the apex court website.

“At the cost of repetition, we state that the impugned order of the High Court is utterly incomprehensible. We have yet to come across a case where the high court has thought fit to discharge an accused charged with the offence of rape on the ground of delay in the registration of the FIR,” Justice Pardiwala said while writing the judgement on behalf of the bench.

The top court, however, did not interfere with the decision of the trial court of discharging the accused Amit Kumar Tiwari, represented by advocate Swarnendu Chatterjee, from the offence punishable under Section 306 (abetment to the commission of suicide) of the Indian Penal Code (IPC).

According to LiveLaw, the case dealt with the death of a minor girl, who died by suicide after she delivered an illegitimate child conceived with the accused.

On April 27, 2020, the survivor had complained of stomach pain and was taken to a private nursing home, thinking it was a case of stomach tumour. While waiting for the doctor at the nursing home, the girl delivered a child on the bench and was rushed to the minor operation theatre.

The girl told her father that Tiwari was the father of her child and they both would start a new life with their baby in a nearby town.

The father of the victim went to bring some money from the village and by the time he returned, the girl had died by suicide and the infant was lying on the dressing table. After that, an FIR was lodged against the accused.

An FIR was registered under Sections 376 (rape) and 306 of the IPC and Sections 5 and 6 of the POCSO Act and a chargesheet was filed. The special court framed charges against the accused.

Allowing a revision petition filed by the accused, the Madhya Pradesh HC noted, “Even in the life time of the deceased she did not approach the police. The story as narrated by the mother of the deceased seems to be doubtful on the ground of delay.” The court discharged the accused.

Madhya Pradesh high court. Credit: PTI

Madhya Pradesh high court. Photo: PTI

SC raps state government

The Supreme Court also rapped the state government for not appealing the order and said that it is a “disturbing feature of this litigation” that the father of the deceased had to come before this court seeking justice.

The top court said that the state is expected to challenge the illegal order passed by the high court. Barring a few exceptions, in criminal matters, the party who is treated as the aggrieved party is the state – which is the custodian of the social interests of the community at large. So it is for the state to take all the steps necessary to bring the person who acted against the social interests of the community to book, the SC said.

Referring to the high court order dated December 2, 2021, the bench said though two full paragraphs were devoted to the purpose of recording the submissions as regards the age of the deceased (rape victim), yet ultimately no specific finding has been recorded in that regard by the court.

“We find that the high court’s conclusion about the age of the deceased and also as regards the delay in lodging the FIR besides being a premature assessment of evidence, is also attributable to the wrong premises on which the high court’s reasoning is based,” the bench said while setting aside the order of the high court and allowed the trial court to proceed with the trial in accordance with the order framing charge dated December 18, 2020.

“The high court proceeded altogether on a different footing. The high court thought fit to discharge the accused of all the charges on the ground that there was [a] delay in lodging the FIR and the entire case put up by the parents of the deceased was doubtful,” it said.

The bench said the law is well settled that although it is open to a high court entertaining a petition under Section 482 of the CrPC or a revision application under Section 397 of the CrPC to quash the charges framed by the trial court, yet the same cannot be done by weighing the correctness or sufficiency of the evidence.

It said in a case praying for quashing of the charge, the principle to be adopted by the high court should be that if the entire evidence produced by the prosecution is to be believed, would it constitute an offence or not?

The top court said it is also well settled that when the petition is filed by the accused for the quashing of the charge framed against him, the superior court should not interfere with the order unless there are strong reasons to hold that in the interest of justice and to avoid abuse of the process of the court, a charge framed against the accused needs to be quashed.

It said, “…the impugned order of the high court could be termed as perverse and not sustainable in law. We refrain from observing anything further in regard to the exact and correct age of the deceased at the time of [the] commission of the offence as alleged as it may cause prejudice to the parties in some manner or the other. It is for the trial court to determine the correct age on the basis of the evidence that may be led by the prosecution as well as by the defence.”