Updates - 20th June to 24th June 2022
- Krishnapriya Sreekumar
- Jun 25, 2022
- 10 min read
Updated: Jun 27, 2022
Image Credits: © Vladstudioraw
20 June 2022
Madras HC: Mere presence of person in brothel, not an offence; Sex Workers should not be arrested during brothel raids
Citing the recent SC Judgment in Budhadhev Karmaskar v. State of West Bengal & Ors., the single-judge bench of Justice N Satish Kumar reiterated that during police raids of brothels, sex workers should not be penalized, detained, or arrested.
The present case was that of a petition filed by one Udayakumar who was arrested from an alleged brothel house and apprehended as accused no. 5 by the police. The charges against him were under Section 370A(2) of the IPC and relevant sections of the ITPA, 1956. Allowing the petition, J. Satish Kumar observed that even if the police report was taken at its face value, there is no suggestion of any offence having been committed as there was no element of coercion or trafficking. The mere presence of the petitioner in a brothel does not entail penal consequences.
"Continuing the FIR against the petitioner would be nothing but a futile exercise and would serve no purpose'"
[Udhaya Kumar v. State & Ors.]
20 June 2022
PIL filed before Apex Court challenging the constitutional validity of the Agnipath Scheme
A Public Interest Litigation has been filed before the SC challenging the constitutional validity of the Agnipath Scheme. The PIL litigant, Advodate ML Sharma has sought to quash the notification dated July 14th 2022 by the Ministry of Defence contending that the scheme is 'illegal, unconstitutional, void ab-initio and ultra vires of the Constitution of India and the interests of justice'.
According to the Indian Air Force's Official Website, the Agnipath Scheme is one wherein selected candidates will be enrolled as 'Agniveers' for four years period. On completion of the four-year period, 'Agniveers will go to society as a disciplined, dynamic, motivated and skilled workforce for employment in other sectors to pursue their career in the job of their choice'. Agniveers will be offered an opportunity to apply for enrollment in a permanent cadre out of which only 25% will be selected to be enrolled in the Armed Forces as a regular cadre. On the contrary, over 75% of the Agniveers will be sent out of service and there is no mention of a pension scheme. Additionally, there has been no pilot project before the nationwide launch of the scheme.
The initiative aims to enhance 'the youthful profile of the Armed Forces' and to 'attract young talent'. So far, many private companies have recognized the scheme and have offered their support including the Tata Group however, the scheme also triggered a mass outbreak of violence and protests around the country, particularly by the youth population.
In light of the same, The PIL also seeks the setting up of a Special Investigation Team to enquire into this mass violence, public outrage, and damage to public properties resulting from protests against the said scheme.
[Manohar Lal Sharma v. Union of India]
21 June 2022
Bombay Court: Wandering late at night is not an offence
A Magistrate Court in Mumbai acquitted a man who was arrested for sitting in the dark near a wine shop 'under suspicious circumstances' and had to surprisingly observe that 'wandering the streets of Mumbai at 1:30 am is not an offence'.
The accused was wearing a handkerchief on his face and failed to answer police inquiries, subsequent to which he was booked under Section 122(b) of the Maharashtra Police Act of 1951. Section 122(b) criminalizes the covering of one's face or being otherwise disguised between sunrise and sunset with the intent to commit an offence. The Magistrate held that simply wearing a handkerchief as a mask does not constitute concealing one's identity.
23 June 2022
J&K HC: Consent of family, community not needed for two consenting adults to marry
The Single-judge bench of Justice MA Chowdhary observed that where two adults decide to tie the knot, the consent of other individuals including family, clan, and community is not of paramount significance and only the consent of the individuals involved is considered primary.
The Court observed that Articles 19 and 21 duly recognize the right of two consenting adults to enter into wedlock. "It is the manifestation of two adults' consenting decision when they agree to be life partners. Once such a right is acknowledged, it must be safeguarded since it is protected by constitutional law and cannot be compromised on ideas of class honor or group mentality. Once two adults choose to get married, their consent must be politely given priority over that of their family, community or clan"
[Kulsum Bano v. Union Territory of J&K]
23 June 2022
Kerala HC: Right of frozen embryo
Recently, the Kerala High Court allowed the transfer of frozen embryos belonging to the petitioner from one hospital to another of their choice stating that the provisions of Assisted Reproductive Technology (Regulation) Act of 2021 do not prohibit such transfers nor can such transfers be obstructed by relying on the provisions of the said Act. The single-judge bench of Justice V.G Arun observed the right of an embryo to develop into a foetus. J. Arun additionally reiterated that the objective of the said Act was to prevent abuse of assisted reproductive procedures and not to create obstructions in the path of aspiring parents.
"A close scrutiny of the provision shows that the intention is to prevent/restrict sale etc of human gametes, zygotes and embryos. In the case at hand there is no such transfer, since no donor or third party is involved and the embryos are that of the commissioning couple."
Apart from the aspirations of the first petitioner to conceive and the second petitioner, to beget a child, the right of the life inside the embryo, which is kept frozen for the past 8 years, to develop into a fetus and be born, cannot be stultified by relying on a provision which has no application. The primary objective of the Act is the regulation and supervision of the assisted reproductive technology clinics and banks, by preventing misuse and ensuring safe and ethical practice of assisted reproductive technology services. The Act is not intended to create difficulties for persons opting assisted reproductive procedure."
[Rakhi Bose & Anr. v Union of India & Ors.].
23 June 2022
Kerala HC: A person outside of India can file for anticipatory bail under 438 CrPC
Recently, the Kerala High Court held that Section 438 of the Code of Criminal Procedure (Direction for grant of bail to person apprehending arrest), does not restrict a person residing outside the country to apply for anticipatory bail (bail in apprehension of arrest). The Court relied on Sushila Agarwal & Ors v. NCT of Delhi and Shri Gurbaksh Singh Sibbia & Ors v. State of Punjab wherein it was held that Courts should not consider Section 438 as a restriction and that such restrictions might make the said provision constitutionally vulnerable.
The single-judge bench of Justice Bechu Kurien Thomas observed that the only condition is that before the final hearing, the applicant should be present in the country to that the Court may impose and enforce the conditions contemplated under Law. The Court also emphasized the Supreme Court's observations in Shri Gurbaksh Singh Sibbia: "the said section is a procedural provision which is concerned with the personal liberty of an individual, who is entitled to the benefit of the presumption of innocence since he is not, on the date of his application for anticipatory bail, convicted of the offence in respect of which he seeks bail."
The same was observed by the bench whilst granting bail to actor Vijay Babu who was accused of rape in Crime No. 515 of 2022 [Ernakulam Town South Police Station].
[Vijay Babu v. State of Kerala & Anr., Bail Application No. 3475/2022]
23 June 2022
Calcutta HC: Denial of Economic Support to Wife and Son is Domestic Violence
The Calcutta High Court observed that denial of economic support to wife and minor son would amount to domestic violence, as understood under Section 3 of the Protect Women from Domestic Violence Act of 2005 [DV Act], regardless of whether the parties are residing in a shared household. Section 3 of the DV Act defines domestic violence and includes 'economic abuse' under clause d(iv).
"Denial of economic support to petitioner as well as their minor son, who has been brought up by the opposite party no. 2 may amount to “economic abuse” as per definition of “domestic violence” under the Act and for that purpose it is not material whether parties are still residing jointly in a shared household or not."
[Md. Safique Mallick v. The State of West Bengal & Anr]
23 June 2022
Calcutta HC: 'Draconian Provisions of NDPS Act', Mandates Videography of Recovery Procedure
In a judgment of substantial importance, the Calcutta High Court directed that in all cases involving the recovery of narcotic substances under the Narcotic Drugs and Psychotropic Substances Act of 1985, the officer seizing such substances shall make a video recording of the seize and recovery procedure. If one fails to record the same, the reason for such failure ought to be mentioned in the investigation records.
The division bench of Justices Joymalya Bagchi and Ananya Bandyopadhyay opined that reliance on technology for such instances would instil fairness, impartiality, and confidence in the investigation process. The Bench additionally observed that although the Field Officers' Handbook issued by the Narcotics Control Bureau inter alia directs the search team to carry with them a video camera for the purposes of such searches, the directive is rarely followed by enforcement personnel.
"While a strict law is necessary to control organized crime like drug trafficking and protect the youth from the menace of drug abuse, its draconian provisions are sometimes misused by investigating agency leading to false implication and prolonged unjustified detention of individuals...Heart and soul of the prosecution is the legitimacy of such recovery...In order to remedy the situation and ensure unvarnished truth is placed before the court during adjudication, it is imperative that the investigating agencies resort to modern technology and videograph the recovery of narcotics"
"This Court takes judicial notice of the fact that all police officers are ordinarily equipped with smart phones and other electronic gadgets which would enable them to videograph recovery. When technology is available at the lay level we see no reason why it shall not be utilized to instil fairness, impartiality and confidence in the investigative process."
[In the matter of Kalu Sk @ Kuran v. State]
23 June 2022
'Right to Education' - Delhi Court allows murder accused to appear for AILET 2022
Observing the right to education in light of its constitutional importance, a Court in Delhi allowed a murder accused to appear for the All India Law Entrance Test 2022 conducted by NLU, Delhi. Vacation Judge Chandra Shekar allowed the application filed by Shashank Jadon who is an accused in a CBI case registered under Section 302 and 34 of the Indian Penal Code.
"It is observed that as per law, right to education is a fundamental right and judicial records show that similar request made by the accused in the year 2020 was allowed by the concerned court vide order dated 19.09.2020, therefore it seems that it is in the interest of justice, if permission is granted to the accused"
The Court, whilst allowing the application, directed the Superintended of Dasana Jail to make necessary arrangements to ensure the appearance of the accused in the said examination and to allow the accused to carry the necessary documents or articles as instructed for candidates to carry.
[CBI v. Shashank Jadon & Anr.]
24 June 2022
SC upholds death penalty to man for rape and murder of minor differently-abled girl
The Apex Court upheld the award of the death penalty to a 37-year-old man for the rape and murder of a 7-and-a-half-year-old girl who was mentally and physically challenged. The three-judge bench of Justices AM Khanwilkar, Dinesh Maheshwari, and CT Ravikumar observed the offence in light of the vulnerable state of the victim and the manner in which the offence was committed.
The victim was kidnapped by the convict and subsequently raped her before smashing her head and causing grave injuries including a fracture of the frontal bone. There were also gruesome injuries on the private parts of the victim. Observing his past criminal background and all connected factors, the Court was of the opinion that the convict was "a danger to the maintenance of order in society".
"This possibility of the appellant relapsing in the same crime over again and nil probability of his reformation/rehabilitation is a direct challenge as also danger to the maintenance of order in the society. Hence, the facts of the present case, taken as a whole, make it clear that it is unlikely that the appellant, if given an absolution, would not be capable of and would not be inclined to commit such a crime again. Consequently, we find it to be a case of no other option but to confirm the death sentence awarded to the appellant, for that being inevitable in this particular case"
"The crime had been of extreme depravity, which shocks the conscience, particularly looking to the target (a seven-and-a-half-year-old mentally and physically challenged girl). and then, looking to the manner of committing murder, where the hapless victim's head was literally smashed, resulting in multiple injuries including fracture of frontal bone - No probability of reformation and has criminal antecedents and also involved in crimes in jail post-conviction - There is absolutely no reason to commute the sentence of death to any other sentence of lesser degree" "Even the alternative of awarding the sentence of imprisonment for whole of the natural life with no remission does not appear justified in view of the nature of crimes committed by the appellant and looking to his incorrigible conduct."
[Manoj Pratap Singh v. State of Rajasthan, SLP Crl. No. 7899-7900 of 2015]
24 June 2022
SCOTUS: The Second Amendment and the right to hold firearms
The Supreme Court of the United States on Thursday struck down a New York law that restricted the carriage of concealed firearms in public for self-defense. The Court opined that the century-old law requiring applicants to demonstrate 'proper cause' and 'good moral character' violates the Second Amendment. "The State of New York makes it a crime to possess a firearm without a license, whether inside or outside the home. An individual who wants to carry a firearm outside his home may obtain an unrestricted license to “have and carry” a concealed “pistol or revolver” if he can prove that “proper cause exists” for doing so."
The Judgment was ruled with a 6-3 majority stating that the law enacted in 1913 violated a person's right to keep and bear arms under the US Constitution's Second Amendment.
Justice Clarence Thomas, delivering the majority opinion, ruled that "The constitutional right to bear arms in public for self-defense is not “a second-class right, subject to an entirely different body of rules than the other Bill of Rights guarantees. The exercise of other constitutional rights does not require individuals to demonstrate to government officers some special need. The Second Amendment right to carry arms in public for self-defense is no different".
On the other hand, a 52-page dissent was authored by Justice Stephen Breyer wherein he observed that "In 2020, 45,222 Americans were killed by firearms. Since the start of this year (2022), there have been 277 reported mass shootings—an average of more than one per day. Gun violence has now surpassed motor vehicle crashes as the leading cause of death among children and adolescents. In my view, when courts interpret the Second Amendment, it is constitutionally proper, indeed often necessary, for them to consider the serious dangers and consequences of gun violence that lead States to regulate firearms. The Second Circuit has done so and has held that New York’s law does not violate the Second Amendment. [See Kachalsky v. County of Westchester, 701 F. 3d 81, 97–99, 101 (2012).] I would affirm that holding. At a minimum, I would not strike down the law based only on the pleadings, as the Court does today—without first allowing for the development of an evidentiary record and without considering the State’s compelling interest in preventing gun violence. I respectfully dissent"
[New York State Rifle & Pistol Association Inc. et al, v. Bruen, Superintended of New York State Police, et al. - Certiorari to the United States Court of Appeals for the Second Circuit, Decided June 23rd 2022]
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