The Supreme Court on Thursday rejected a plea for referring the Ramjanambhoomi-Babri Masjid dispute to a larger Constitutional Bench and decided that a newly set up three-judge bench will hear the case from October 29.

“No case has been made out to refer the case to the Constitution Bench,” Justice Ashok Bhushan said reading out the judgement on behalf of Chief Justice Dipak Misra and on his own behalf.

However, Justice Abdul Nazeer wanted the case to be referred to a bigger Constitution Bench.

(IANS)

In yet another landmark judgement, the Supreme Court on Thursday decriminalised adultery after striking down a British era law, Section 497 of the Indian Penal Code, terming it as unconstitutional, archaic and manifestly arbitrary, with one judge saying women can’t be treated as “chattel”.

“Mere adultery can’t be a criminal offence. It is a matter of privacy. Husband is not the master of wife. Women should be treated with equality along with men,” Chief Justice Dipak Misra said.

Most countries have abolished adultery as a crime. “It shouldn’t be a criminal offence, other people are also involved in it,” Misra said, reading out the judgement, also on behalf of Justice A.M. Khanwilkar.

Earlier this month the apex court had decriminalised same sex offence under Section 377 of the IPC, which was another British era law.

Any discrimination shall invite the wrath of the Constitution, the Chief Justice said, adding that a woman cannot be asked to think about the way society desires her to do.

Justice Rohinton F. Nariman, reading out his judgement, said: “Women can’t be treated as chattel”.

Justice D.Y. Chandrachud in a concurring but separate judgment said society has two sets of morality in sexual behaviour — one for women and another for men.

Society treating women as embodiment of virtue leads to things like honour killings, he said, adding that the archaic law is against dignity, liberty and sexual autonomy guaranteed under the Constitution.

IANS

Terming the Supreme Court verdict on Aadhaar a breath of fresh air for Indian citizens, experts on Wednesday said a completely new regime has to be put in place to protect the Aadhaar data that is lying with private companies.

Stating that private entities or individuals cannot avail Aadhaar data to provide consumer services, the apex court struck down Section 57 of the Aadhaar Act which allowed sharing of data with private entities.

It means that telecom companies, e-commerce firms and private banks cannot ask for biometric and other data from consumers to provide their services.

“The Aadhaar verdict is a huge sigh of relief for citizens. The humongous task now is to ensure that the data that is already with private companies is not misused or sold,” Pavan Duggal, the nation’s leading cyber law expert, told IANS.

“The data now needs to be dismantled but the onus is to make sure companies do not make copies of the data and use it to monetise their operations. The big question is which agency will audit this humongous task,” added Duggal, also a leading Supreme Court lawyer.

The apex court also said that Aadhaar data can’t be shared with security agencies in the name of upholding national security and individuals too can complain about theft of their Aadhaar data.

“Private companies played a big gamble of integrating Aaddhar data with their systems wherein they spent a lot of money. The whole exercise is now futile and the country now needs a fresh Aadhaar ecosystem,” Duggal noted.

The Unique Identification Authority of India (UIDAI), said Duggal, had already lodged more than 50 FIRs against private companies for Aadhaar data breach.

“Today’s judgment as read out in court signals massive changes in the Aadhaar project and the Act. The legitimacy of its stated purposes is destroyed. Even the majority signals significant concern by reading down portions,” tweeted New Delhi-based lawyer Apar Gupta.

Although experts are yet to read the verdict in fine print, they said the Supreme Court’s directive to Centre to bring a robust data protection law is the need of the hour.

“The Aadhaar data is saved in data centres outside the boundaries and law of our country. There is an urgent need for addressing newly emerging legal and cyber security challenges concerning Aadhaar ecosystem on an urgent basis,” Duggal said.

The Supreme Court, in a landmark judgment last year, declared privacy a fundamental right. This set the government in motion to take steps to bring a new data protection legislation for the country.

The Justice B.N. Srikrishna Committee submitted the Personal Data Protection Bill 2018 in July, suggesting amendments to the Aadhaar Act to provide for imposition of penalties on data fiduciaries and compensations to data principals for violations of the data protection law.

The 213-page report suggested amendments to the Aadhaar Act from a data protection perspective.

According to Duggal, “not just cosmetic changes, there is an urgent need for addressing newly emerging legal and cyber security challenges concerning Aadhaar ecosystem on an urgent basis”.

Supratim Chakraborty, Associate Partner at law firm Khaitan & Co, said the verdict that private parties cannot have access to individuals’ data was a double-edged thing.

“From a socialistic perspective and individualistic perspective, you need to have proper safeguards as to how your information is being used by a private party.

“However, from a business perspective, it could increase their expenses if they need to collect too much information one by one from an individual. It compels us to ponder whether there is a correct way to do business while protecting the privacy of users,” Chakraborty told IANS.

In Europe, as part of the European Union’s General Data Protection Regulation (GDPR) that came into force from May 25, EU citizens at any point may object to an organisation’s handling of their personal data.

The regulation specifically names “direct marketing and profiling” as personal data uses to which individuals may object.

According to Duggal, India should not cut-paste any other country’s law and must strive for data localisation.

“There is a need for more comprehensive legal frameworks to protect and preserve data and privacy of individual Aadhaar account holders in specific and the Aadhaar ecosystem stakeholders in general,” Duggal noted.

IANS

The Supreme Court on Wednesday said the state does not require to collect quantifiable data on the backwardness of the Scheduled Castes and Scheduled Tribes (SC/ST) persons for giving them reservation in promotion.

A five-judge Constitution Bench headed by Chief Justice Dipak Mishra said this while hearing a plea by the Centre seeking reconsideration of its 2006 judgement that asked for providing of quantifiable data on the SC/STs before considering them for reservation in promotion.

The top court by its 2006 judgment, also known as Nagaraj case, had said: “…state will have to show in each case the existence of compelling reasons, namely backwardness, inadequacy of representation and overall administrative efficiency, before making provision for reservation in promotion.”

The October 19, 2006 the judgment was pronounced by a five-judge constitution bench comprising then Chief Justice Y.K. Sabharwal and Justices K.G. Balakrishnan, S.H. Kapadia, C.K. Thakker and P.K. Balasubramanyan.

Making it clear that the concept of creamy layer within the SC/ST is not the issue, a bench of Chief Justice Dipak Misra, Justice Kurian Joseph, Justice Rohinton Fali Nariman, Justice Sanjay Kishan Kaul and Justice Indu Malhotra had earlier said: “There may be individuals (within SC/ST) who might have overcome the stigma, but the community continues to face the stigma.”

The judgment was reserved on August 30.

(IANS)

The Samastha Kerala Jamiathul Ulema on Tuesday moved the Supreme Court challenging the Muslim Women (Protection of Rights on Marriage) Ordinance, 2018 on the grounds that it invokes penal provisions against a class of people based on their religious identity.

The Muslim Women (Protection of Rights on Marriage) Ordinance, 2018 — commonly referred to as triple talaq ordinance — abolishes the practice of triple talaq and makes its punishable.

Founded in 1925, the Samastha Kerala Jamiathul Ulema ia a religious organisation of the Sunni Muslim scholars and clerics in Kerala.

Contending that the triple talaq ordinance is violative of Article 14, 15 and 21 of the Indian Constitution, the petitioner organisation has said that it has national ramification as it has introduced penal provision punishing a class of persons based on religious identity.

The Jamiathul Ulema has contended that the ordinance is “causative of grave public mischief, which, if unchecked, may lead to polarisation and disharmony in society”.

The petitioner organisation has taken exception to the word “unabated” in the ordinance, which says that despite the Supreme Court holding the practice of triple talaq (talaq-e-biddat) as unconstitutional, it is continuing “unabated”.

Describing the use of word “unabated” as “entirely whimsical”, the petitioner organisation termed it “misleading, inept and improper”.

It said that it is doubtful that anybody, including the Central government, has any idea of all-India statics on the occurrence of triple talaq across te country prior to the Supreme Court judgment.

It has contended the fact that the matter is pending before the Rajya Sabha is “reason to await the outcome of the matter, not basis to accelerate its coming into force by an emergency ordinance”.

The petitioner organisation have contended that the real thrust of the ordinance is not abolition of triple talaq but punishment of Muslim husbands.

Section 4 of the ordinance imposes a maximum sentence of three-year imprisonment when a Muslim husband pronounces triple talaq. The offence is also cognizable and non-bailable as per Section 7.

“Creation of an offence may be the prerogative of the legislature. The government is duty-bound to act reasonably and sensibly, not merely in administrative matters but also in sovereign matters,” says the petition, contending that to its knowledge, “there is no informed assessment or study that forms basis for the Central government to have created this offence”.

“Some isolated instances of the practice that have occurred after the top court judgment does not imply that a penal provision is required to be immediately enacted to prevent the practice,” the petition has contended.

Having said this, the petitioner Samastha Kerala Jamiathul Ulema has contended that the ordinance under challenge is “patently unconstitutional and has immediate propensity to deprive Muslim men and women of their fundamental rights enshrined under Articles 14, 15 and 21 of the Constitution”.

IANS

The Supreme Court on Tuesday declined to disqualify candidates against whom cognisance of chargesheet have been taken by courts, saying no further disqualification under the law could be added but urged Parliament to enact a law to address the malaise of criminals entering legislatures.

At the same time, the apex Court directed political parties to post on their websites and widely publicise in the media, both print and electronic, full details of the criminal charges against the candidates they would be fielding in elections.

Pronouncing the judgment, a five-judge Constitution Bench headed by Chief Justice Dipak Misra also said that the law on criminals entering politics should also address fake cases being instituted against political opponents.

Speaking for the bench, Chief Justice Misra said: “An essential component of a constitutional democracy is its ability to give and secure for its citizenry a representative form of government, elected freely and fairly, and comprising a polity whose members are men and women of high integrity and morality. This could be said to be the hallmark of any free and fair democracy.”

The court said that the time had come for Parliament to enact a law to “cleanse the polluted stream of politics” by prohibiting people with criminal antecedents in the political system. “The nation eagerly waits for such legislation … and the sooner the better, before it becomes fatal to democracy,” the court added.

Noting that the constitutional functionaries are expected to ensure that the existing political framework does not get tainted with the evil of corruption, the court said that despite the “heavy mandate of the Constitution, our democracy, has seen a steady increase in the level of criminalisation that has been creeping into the Indian polity”.

The court directed that the candidate as well as the concerned political party “shall issue a declaration in the widely circulated newspapers in the locality about the antecedents of the candidate and also give wide publicity in the electronic media”, said Chief Justice Misra, speaking for the five-judge Constitution Bench.

“When we say wide publicity, we mean that the same shall be done at least thrice after filing of the nomination papers,” said the bench, also comprising Justice Rohinton Fali Nariman, Justice A.M. Khanwilkar, Justice D.Y. Chandrachud and Justice Indu Malhotra.

The complete information about the criminal antecedents of the candidates forms the bedrock of wise decision-making and informed choice by the citizenry, the court said while emphasising that “informed choice is the cornerstone to have a pure and strong democracy”.

The Constitution Bench said the society had a “legitimate expectation to be governed by proper constitutional governance. The country feels agonized when money and muscle power become the supreme power”, it said.

The apex court called for “substantial efforts” to prohibit people with criminal antecedents so that they do not even “conceive of the idea of entering into politics” and should be “kept at bay”.

It said: “We are sure, the law making wing of the democracy of this country will take it upon itself to cure the malignancy. We say so as such a malignancy is not incurable. It only depends upon the time and stage when one starts treating it.

“It is one thing to take cover under the presumption of innocence of the accused but it is equally imperative that persons who enter public life and participate in law making should be above any kind of serious criminal allegation,” the court urged Parliament

Under the criminal law, an accused person is presumed to be innocent till convicted by the court.

Holding that “informed choice” is the cornerstone to have a “pure and strong democracy”, the court said: “The complete information about the criminal antecedents of the candidates forms the bedrock of wise decision-making and informed choice by the citizens.”

Issuing a slew of directions to the political parties and prospective candidates, the court directed that the candidate contesting elections “shall state, in bold letters”, about the criminal cases pending against him/her in the form provided by the Election Commission at the time of filing nomination papers.

The court directed that a candidate contesting election on the ticket of a political party would inform the party about the criminal cases pending against him/her and that party “shall be obligated to put up on its website” information on criminal antecedents of the candidate fielded by it.

Saying that “we have issued the said directions with immense anguish,” the court said: “These directions ought to be implemented in true spirit and right earnestness in a bid to strengthen the democratic set-up.”

“There may be certain gaps or lacunae in a law or legislative enactment which can definitely be addressed by the legislature if it is backed by the proper intent, strong resolve and determined will of right-thinking minds to ameliorate the situation,” the court said.

It further said that it “must also be borne in mind that the law cannot always be found fault with for the lack of its stringent implementation by the concerned authorities”.

It is the “solemn responsibility” of all concerned to enforce the law as well as the directions laid down by this court from time to time in order to “infuse the culture of purity in politics and in democracy and foster and nurture an informed citizenry, for ultimately it is the citizenry which decides the fate and course of politics in a nation and thereby ensures that we shall be governed no better than we deserve”.

(IANS)

The CBI has written to the Interpol in Nigeria seeking the whereabouts of Chetan and Nitin Sandesara, directors of the Gujarat-based pharma company Sterling Biotech in connection with an over Rs 5,000-crore bank fraud case.

A senior official of the Central Bureau of Investigation (CBI) told IANS that it has written to the Interpol unit in Nigeria to share details on whereabouts of Nitin and Chetan Sandesara and his family members in that country.

According to the agency source, the CBI wrote to the Interpol in Nigeria late on Monday.

The CBI official made the revelation amid media reports that Nitin and Chetan Sandesara, along with his family members, had fled to the African nation.

The CBI had booked Sterling Biotech, its directors Chetan Jayantilal Sandesara, Dipti Chetan Sandesara, Rajbhushan Omprakash Dixit, Nitin Jayantilal Sandesara and Vilas Joshi, chartered accountant Hemant Hathi, former Director of Andhra Bank Anup Prakash Garg and some unidentified persons in connection with the alleged bank fraud in October 2017.

According to the CBI FIR, Sterling Biotech had taken over Rs 5,000 crore loans from a consortium of banks led by Andhra Bank during the years 2004 to 2012, which had turned into non-performing assets. The total pending dues of the group companies were Rs 5,383 crore as on December 31, 2016.

Meanwhile, a source in the Enforcement Directorate (ED) said the agency is set to file a chargesheet against the accused soon under the Prevention of Money Laundering Act (PMLA). The source also said that the agency would also write to the Interpol seeking a red corner notice (RCN) against the accused.

The ED had initiated a money laundering probe into the case taking cognizance of the CBI FIR.

On January 13, the ED had arrested Garg. The agency also arrested a Delhi-based businessman Gagan Dhawan in connection with the case in November last year. Besides, the Directorate also attached properties worth Rs 4,703 crore.

The ED had issued lookout circulars against the accused in August 2017.

(IANS)

The Supreme Court on Tuesday dismissed a plea seeking a ban on members of Parliament and legislative assemblies from practising as advocates.

A bench of Chief Justice Dipak Misra, Justice D.Y. Chandrachud and Justice A.M. Khanwilkar dismissed the plea saying there is no bar on lawyers, who are members of Parliament or an assembly, from practising in court during their tenure as lawmakers.

There is no rule of Bar Council of India (BCI) or law that bars them from practicing in court, the bench said.

The court’s verdict came on a plea filed by advocate and Bharatiya Janata Party leader Ashwini Kumar Upadhyay contending that MPs/MLAs practising as advocates pose a conflict of interest under the provisions of the Advocates Act, 1961, and the Bar Council of India Rules.

The plea had sought a ban on legislators practising as advocates for the period that they occupy such positions, contending that the dual role would also amount to professional misconduct when MPs and MLAs, who get salary and other benefits from public funds appear against the government as lawyers.

Kapil Sibal, Abhishek Manu Singhvi, P. Chidambaram, K.T.S. Tulsi, Pinaki Misra, Meenakshi Lekhi, and K. Parasaran are among the parliamentarians who also practise as advocates.

Ians

The Supreme Court on Monday referred to a Constitution Bench a plea questioning the practice of Female Genital Mutilation (FGM) prevalent in the Dawoodi Bohra community.

The issue was referred to the Constitution Bench on the request of Attorney General K.K. Venugopal and senior counsel Mukul Rohatgi appearing for the community.

A bench of Chief Justice Dipak Misra, Justice A.M. Khanwilkar and Justice D.Y. Chandrachud said that they would frame the question for the consideration of the Constitution Bench.

The earlier hearing by the three-judge bench saw the Centre describing the practice of FGM amongst Dawoodi Bohras, as being violative of bodily integrity which is a part of right to privacy and dignity.

However, the community had defended the practice on the grounds of the freedom of religion and religious practices.

IANS

In a major victory for thousands of Indian Muslim women, the Union Cabinet on Wednesday approved an ordinance making triple talaq a punishable offence.

According to reports, the Union Cabinet also cleared an executive order in this regard.

Giving more information, Union Law Minister Ravi Shankar Prasad said, ”Cabinet has today approved an ordinance on Triple Talaq. The core component of this Ordinance is that an offence will be cognizable only when the FIR is filed by the victim wife or her close relations by blood or marriage.”

”Secondly, it’s compoundable, it can be compromised only at the insistence of the wife upon appropriate terms and conditions as determined by the magistrate. Thirdly, a bail can be granted by the magistrate upon reasonable grounds but only after hearing the victim wife also,” Prasad said.

”As for other provisions are concerned, the mother/victim wife must get the custody of the minor child and the mother is entitled to a maintenance suitably determined by the magistrate for herself and the child,” the Law Minister said.

The BJP leader also accused the Congress party of blocking the triple talaq bill in the Rajya Sabha. ”It’s my serious charge with full sense of responsibility that a distinguished woman leader is ultimate leader of the Congress, yet barbaric inhuman triple talaq was not allowed to be ended by a Parliamentary law for pure vote-bank politics,” Prasad said.

Law Minister RS Prasad says, “It’s my serious charge with full sense of responsibility that a distinguished woman leader is ultimate leader of the Congress, yet barbaric inhuman Triple Talaq was not allowed to be ended by a Parliamentary law for pure vote bank politics”

The Narendra Modi government decided to bring an ordinance on the issue after it failed to get the triple talaq bill cleared by both the houses of Parliament.

The ordinance, to be brought by the Centre, will have similar provisions as The Muslim Women Protection of Rights in Marriage Act, which was cleared by the Lok Sabha with a voice vote last year.

The triple talaq bill pushed by the Government had met tough resistance from several Opposition lawmakers in the Rajya Sabha.

While opposing the bill, the opposition lawmakers had pressed for sending the bill to a Select Committee for close scrutiny.

In view of the Opposition to the proposed legislation, the Centre had even sought the opinion of all state governments on the subject, and, most of them had supported it.

The bill, earlier approved by the Lok Sabha, makes instant “triple talaq” a criminal offence and proposes a three-year jail term for a Muslim man who divorces his wife by uttering the word “talaq” thrice.

The bill to make talaq-e-biddat void and illegal has provisions for imprisonment and fine for anyone invoking it.

It also deals with subsistence allowance to a Muslim woman and her children from the estranged man as well as custodial rights of minor children.

The bill terms instant triple talaq delivered in any form – whether delivered orally, including telephone or a mobile call, or in writing or through the electronic medium like WhatsApp or SMS – illegal.

The Supreme Court had last year declared instant triple talaq illegal and unconstitutional.

After the top court ruling, the Centre had formed a Group of Ministers (GoM) comprising Finance Minister Arun Jaitley, Home Minister Rajnath Singh, External Affairs Minister Sushma Swaraj and Law Minister Ravi Shankar Prasad to look into the issue.

Several Muslim women had approached various courts, arguing that age-old practice of husbands divorcing them through “Triple Talaq”, including by Skype and WhatsApp, violated their fundamental rights and rendered them helpless and unwanted in the society.

ANI