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Social Jurist Moves to SC to stop Kendriya Vidyalayas hiking Student fee #RTE

Thursday 27/02/2014: Social Jurist, A civil rights group has today moved Supreme Court against order of Delhi High Court permitting Kendriya Vidyalayas to charge fees under various heads, like tuition fees, vidyalaya vikas nidhi, computer fund, etc., from the students studying in classes 1 to 8.

 

The petitioner through Advocate Ashok Agarwal has raised a constitutional issue as to “whether after 1/4/2010 i.e. date when article 21-A of the Constitution of India and the provisions of Right of Children to Free and Compulsory Education Act, 2009 came in to force, the KVS are disentitled to levy any kind of fees on the students of classes 1 to 8 studying in various kendriya vidyalayas (central schools)?”

 

A Division Bench of Delhi High Court in its order of 13/12/2013 in a PIL filed by the petitioner held that the action of the KVS in charging fees under various heads from the students studying in Kendriya Vidyalays in classes 1 to 8 is not in violation of 21-A of the Constitution of India as well as of the provisions of Right of Children to Free and Compulsory Education Act, 2009.

 

The High Court held,” In our opinion, Kendriya Vidyalaya Sangathan schools are governed by Section 12 (1) (c) of RTE Act which only mandates that a school specified in sub-clause (iii) of clause (n) of Section 2 must admit twenty five per cent of its strength in class one from children belonging to weaker section and disadvantaged group in the neighborhood and must provide them free and compulsory education. RTE Act does not mandate that no fee shall be charged from remaining seventy five percent of its student.”

 

The petitioner in the SLP has argued, “That in view of Article 21-A of the Constitution of India and in view of Preamble, as well as Section 3, of the Right of Children to Free and Compulsory Education Act, 2009, it is impermissible in law for the Respondents to levy any kind of fee on the students studying in Class 1 to Class 8. In other words, the action of charging any kind of fees from the students of Classes 1 to 8 by Kendriya Vidyalayas run by Kendriya Vidyalaya Sanghathan, is not only unconstitutional but also illegal and arbitrary.”

 

The SLP is likely to be heard in the next week.

 

Ashok Agarwal, Advocate

M.9811101923

27.02.2014

S Y N O P S I S

 

The Petitioner is preferring the present SLP against the judgment and order dated 13.12.2013 of the Division Bench of the Hon’ble High Court of Delhi at New Delhi in Writ Petition (C) No. 2993 /2013 dismissing the Public Interest Litigation as Writ Petition under Article 226 of the Constitution of India.

By the aforesaid Writ Petition the petitioner has raised the following legal issues of great public importance for determination by this Hon’ble Court:-

(i)       Whether after 01.04.2010 i.e. the date when Article 21-A of the Constitution of India and the provisions of Right of Children  to  Free and Compulsory Education Act, 2009 came into force, the Respondents are disentitled to levy any kind of fees on the students of Classes 1 to 8 studying in Kendriya Vidyalayas (Central Schools)?

 

(ii)      Whether the impugned action on the part of the Respondents to charge fees, under various heads, from the students of Classes 1 to 8 studying in Kendriya Vidyalayas,  whether run in civil sectors or in defense sector or in public sector, is arbitrary, unconstitutional, illegal, unjust, anti-child, violative of Articles 14, 15, 21, 21A, 38 and 41 of the Constitution of India, contrary to the provisions of Right of Children to Free and Compulsory Education Act, 2009,  contrary to U.N. Convention on Rights of  the Child (1989) and contrary to the law laid down by the Hon’ble Supreme Court in Society of Unaided Private Schools of Rajasthan v. Union of India (2012) 6 SCC 1?

 

(iii)     Whether the Respondent No. 1, Kendriya Vidyalaya Sangathan, is obliged to refund the school fees, as charged from the students of Classes 1 to 8 during the academic sessions 2010-11, 2011-12 and 2012-13, to the parents of the students?

 

(iv)     Assuming Right of Children to Free and Compulsory Education Act, 2009 permits the Kendriya Vidyalaya Sangathan to levy fee on students of class 1 to 8 on the basis of KVS being specified category of school in terms of section 2(p) of the Right of Children to Free and Compulsory Education Act, 2009, then the provision of section 2(p) of Right of Children to Free and Compulsory Education  Act, 2009 is ultra vires of Articles 14, 21, 21-A and 38 of the Constitution of India.

 

Coming to the present case the Respondent No. 1, Kendriya Vidyalaya Sangathan, is running nearly 1000 Kendriya Vidyalayas (Central Schools) all over the country, and few overseas, where nearly 10 Lakhs students are studying in Classes 1 to 12.  It may be noted that nearly 7 to 8 Lakhs students are studying in Classes 1 to 8 (Elementary Classes).

That all the Kendriya Vidyalayas all over the country, including Delhi, have been charging fees under various heads from the students studying in Classes 1 to 8.  The fee is being charged under the head of Vidyalaya Vikas Nidhi, Computer Fund, etc.

 

That in view of Article 21-A of the Constitution of India and in view of Preamble, as well as Section 3, of the Right of Children to Free and Compulsory Education Act, 2009, it is impermissible in law for the Respondents to levy any kind of fee on the students studying in Class 1 to Class 8. In other words, the action of charging any kind of fees from the students of Classes 1 to 8 by Kendriya Vidyalayas, as run by Kendriya Vidyalaya Sanghathan, is not only unconstitutional but also illegal and arbitrary.

 

Being aggrieved by the impugned illegality on the part of the Respondents in charging fees from the students under various heads, the Petitioner preferred a writ petition under Article 226 of the Constitution of India being Writ Petition (Civil) No. 2993/2013 as a Public Interest Litigation (P.I.L.). The said writ petition being Writ Petition (Civil) No.2993/2013 was dismissed by the Hon’ble Delhi High Court by passing the impugned Judgment and Order dated 13.12.2013.

 

Hence, the present Special Leave Petition.

 

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SC rejects anticipatory bail to Teesta, but stays arrest till April #WTFnews

The couple had approached the apex court against the order of the Bombay High Court which had given them only interim protection for four weeks.

The Supreme Court on Monday refused to grant anticipatory bail to social activist Teesta Setalvad and her husband Javed Anand but extended interim protection from arrest till March end in a case lodged against them in Ahmedabad for alleged embezzlement of funds.

The couple had approached the apex court against the January 31, 2014 order of the Bombay High Court which had given them only interim protection for four weeks till February 28, 2014 with a direction to approach the Gujarat High Court for anticipatory bail.

Ms. Setalvad and her husband have been booked by the Crime Branch of Gujarat Police on the charges of cheating, breach of trust under the IT Act, in a matter related to construction of “Museum of resistance” in Gulbarg society in Ahmedabad which was hit by communal riots in 2002.

“We are not inclined to interfere with the order of the Bombay High Court. However, we extend the interim protection from February 28 to March 31. The petitioners can file petition in Gujarat High Court for anticipatory bail which has to be heard independently without being influenced by the observation made by the Bombay High Court,” a bench comprising justices S.J Mukhopadhaya and Kurian Joseph said.

The bench said it will be open for the Bombay High Court to go into the question of law that whether anticipatory bail can be entertained in the cases registered in different state.

 

Read more here – http://www.thehindu.com/news/national/sc-rejects-anticipatory-bail-to-teesta-but-stays-arrest-till-april/article5722356.ece#.UwxXhK8umPI.gmail

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SC sets up Sexual Harassment cell – Women can e-mail, post complaints #Vaw

Wednesday, February 19, 2014 – DNA

The committee set up in the Supreme Court to deal with instances of sexual harassment within its precincts has decided that aggrieved women can send their complaints to it by post or e-mail. “The aggrieved women as defined in clause 2(a) of the Gender Sensitisation and Sexual Harassment of Women at the Supreme Court of India (Prevention, Prohibition and Redressal) Regulations, 2013 may make a complaint in writing of sexual harassment at Supreme Court of India precincts to the GSICC through its Member Secretary – Rachna Gupta, Registrar,” the circular reads, adding it has been done to sensitise the general public on gender issues.

It said the first meeting of the committee was held on December 9, 2013 to workout the modalities for the effective implementation of “The Gender Sensitisation and Sexual Harassment of Women at the Supreme Court of India (Prevention, Prohibition and Redressal) Regulations, 2013” and to take decision on related issues. “The complaint shall be sent either by registered post, courier, speed post or e-mail. It can also be handed over personally at the above said address,” the circular said, adding the confidentiality of the inquiry proceedings shall be maintained.

The aggrieved women can send their complaint on the email ID of Rachna Gupta at [email protected]

In January this year, the committee in its annual report had said it had received two complaints from two women lawyers since its inception in November 2013 and the complaints were pending disposal.

Chief Justice of India P Sathasivam had formed GSICC which is headed by the Supreme Court’s woman judge, Justice Ranjana Prakash Desai, and has six other women members. There are two members who are outsiders and not connected with the apex court in any manner. The panel is in consonance with the guidelines laid down by the apex court in its judgement in Vishaka case for dealing with complaints of sexual harassment at workplace.

Under the guidelines, it is required that the panel has a majority of women members and two members of civil society nominated by the Chief Justice of India.

Read more here —  http://www.dnaindia.com/india/report-women-can-e-mail-post-complaints-to-supreme-court-sexual-harassment-cell-1963440

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Commute Bhullar’s #DeathPenalty to Life: Delhi Govt to SC

FILE – PTI PHOTO

Delhi government has pleaded with the Supreme Court to commute death sentence of Khalistani terrorist Devinderpal Singh Bhullar to life imprisonment on the ground of his mental illness.

In an affidavit filed in the apex court, the government referred to the opinion of the Delhi Lieutenant Governor in which he had favoured commutation of the death sentence.

“On principles of human ethics and natural justice, I cannot bring myself to recommend the rejection of the mercy petition of Navneet Kaur (wife of Bhullar) and my comments may kindly be forwarded to the President of India for the final disposal in the matter,” the Governor had said.

The affidavit was filed in compliance with the order of the apex court which has issued a notice to it on Navneet Kaur’s plea for commutation on January 31 while staying his execution.

The apex court had also directed the Institute of Human Behaviour and Allied Sciences (IHBAS), where Bhullar is being treated, to file a medical report within a week on the condition of the death convict who is alleged to be suffering from a mental illness.

The plea of Bhullar’s wife for commutation of death sentence assumes significance in view of the apex court’s January 21 verdict holding that inordinate and inexplicable delay by government in deciding mercy plea of death row convicts can be a ground for commuting their sentence.

Bhullar’s wife has filed the petition for relook against the apex court verdict which rejected her plea to commute his death sentence to life imprisonment on grounds of delay on the part of the government in deciding his mercy plea.

Bhullar was convicted and awarded death penalty for triggering a bomb blast in New Delhi in September 1993, which killed nine persons and injured 25 others, including the then Youth Congress president M S Bitta.

The apex court had on March 26, 2002 dismissed Bhullar’s appeal against the death sentence awarded by a trial court in August 2001 and endorsed by the Delhi High Court in 2002.

He had filed a review petition which was also dismissed on December 17, 2002. Bhullar had then moved a curative petition which too had been rejected by the apex court on March 12, 2003.

Bhullar, meanwhile, had filed a mercy petition before the President on January 14, 2003.

The President, after a lapse of over eight years, dismissed his mercy plea on May 14, 2011. Citing the delay, he had again moved the apex court for commutation of the death sentence but his plea was rejected.

The apex court had on January 21 held inordinate delay by government in deciding mercy plea of death row convicts can be a ground for commuting their sentence and granted life to 15 condemned prisoners including four aides of forest brigand Veerappan.

In a landmark judgement, the court had held that prolonging execution of death sentence has a “dehumanising effect” on condemned prisoners who have to face the “agony” of waiting for years under the shadow of death during the pendency of their mercy plea.

 Read more here — http://news.outlookindia.com/items.aspx?artid=828959

 

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SC rejects Maudany’s interim bail plea #injustice

J. VENKATESAN

But directs the Karnataka government to provide him with medical treatment in a hospital till he undergoes eye surgery

The Supreme Court on Wednesday declined to grant interim bail to Abdul Nasser Madani, an accused in the 2008 Bangalore serial blasts case, on medical grounds, but directed the Karnataka government to provide him with medical treatment in a hospital till he undergoes an eye surgery.

A Bench of Justices H.L. Gokhale and Kurian Joseph, in a brief order, said: “This application is seeking bail on the ground of ill health of the applicant. There is a report which places on record the names of doctors who have examined the applicant, the treatment which has been given to him at the Manipal Hospital and the medication which has been prescribed.”

It went on to state: “The report states that the applicant has to report for review after two months to be ready for the eye surgery. Mr. Prashant Bhushan [counsel for petitioner] presses the bail application submitting that there is no reason as to why the applicant should be retained in custody with his present condition. Mr. Raju Ramachandran, senior counsel for Karnataka on the other hand, opposes this bail application very much.”“We are of the view that it will be better that the applicant is examined in a week. In the event his condition requires hospitalisation, he will be shifted to Manipal Hospital until he is ready for the eye surgery. The expenses for hospitalisation and the eye surgery will be borne by the State of Karnataka as he is in the custody of the State of Karnataka. The wife and near relatives of the applicant will be allowed to visit him and meet at the Hospital. The authorities will see to it that the food which is required in his present condition is made available to him either in jail or at the Manipal Hospital,” the Bench said.

In his special leave petition against a fast-track court order rejecting his bail, Mr. Madani said he was now a handicapped person and his movements were restricted on account of amputation of his right leg below the knee. He said he was dependent upon a wheelchair for his movements, and that he was suffering from chronic diabetes, coronary heart disease and cervical spondylosis, among other ailments.

Mr. Bhushan submitted that due to the fluctuating and chronic diabetes Mr. Madani was suffering from, coupled with the lack of appropriate treatment, he could not undergo the eye surgery. Mr. Madani, the lawyer argued, could be released on interim bail so that he could get proper treatment and eat home-cooked food, which was essential to bringing down the blood sugar level.

Read more here — http://www.thehindu.com/news/national/sc-rejects-maudanys-interim-bail-plea/article5631897.ece

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I am gay. I am married to a woman. This is my story.#LGBTQ #Sec377

by Ravi K.

 

It is now time to turn, like the sunflower, towards the sun. — Namdeo Dhassal On 11/12/13, when the Supreme Court’s order recriminalising homosexuality flashed on TVs, I felt a cold sweat. I shivered. But I had no difficulty hiding it from my colleagues in the newsroom. After all, I have been hiding my gayness — yes, I am gay — for many years. It was no big deal. But then something started ringing inside and there was a dull pain that intensified over the next few days. Secrecy is sin.

For many years, I committed that. Yesterday the Supreme Court rejected the review petition as well. The order recriminalising gay sex declared silence is sin too. The urge to speak up was stronger than ever before. So I say this. I am gay. I am married to a woman. It has been a remorse-filled 12 years, traversing two entirely different worlds – one fake and the other original but secret. This is my story. Here I lay it bare, though not in its entirety.

Representational image. Reuters.

Representational image. Reuters.

My life in mirrors

Where do I start from? There are many starting points. Once I accepted myself as gay and came out to my wife, many instances in life, which remained suspended for no reason, fell in place for both of us. Now when I look back, the picture is clearer. As a child, even before I went to school, I loved dressing up like a girl. Once my parents went to work and my brother and sister went to school, my grandmother looked after me. Left to myself the whole day, my favourite time-pass was dressing up as a girl. I did not enjoy the company of other kids, unless they were girls. My best friend was a girl in the neighbourhood. Our companionship, however, did not last long.

As I grew up, I increasingly got worried people might find out that I am more comfortable with girls as friends. Would they start making fun of me? Probably, my friend and her parents were worried too, only that their concern most likely was her closeness to a boy. The friendship died a slow death. Around seventh grade I also started feeling attraction to the male body. There was no sex education. I did not know why this was happening.

I liked dancing. My sister was learning classical dance. I remember going to the dance class with her as a kid. Whenever left to myself, I dressed up like a girl and danced. I had no friends in the village. I enjoyed my own company more than anybody else’s. Whenever I went out, I was afraid of getting publicly ridiculed and mocked. I feared that each and every aspect of my character, my behaviour betrayed the femininity, which I desperately tried to hide. One such was my fear of crackers, which was not considered masculine. As part of festivals, when my father and brother burst crackers in front of our house, my sister and I hid inside the house. I particularly remember one incident that happened when I was four or five.

One day, when I was returning from the market, somebody burst a cracker near me. I got scared and ran, crying. After this, people started calling me “cracker”. I learned to hide my likes and dislikes in order to adjust to the society’s norms. I changed the way I walked, the way I spoke. I learnt to swing my hands in a manly way.

I did not shave my moustache, even though I strongly wished to. In my home state, a clean shaven face is considered feminine. As I started living in the make-believe masculine, macho world, I created another world for myself – a world inside mirrors. Alone, in front of mirrors, I felt comfortable. I spoke to the reflection. He was a girl. I danced, sang, enacted roles. It was liberation.

My life was in mirrors, until I came out to my wife four years ago. Growing up as Mr Cellophane As I grew up, the list of my fears also grew. The fear of homosexuals was the biggest of all. I took care not to show any sympathy or compassion for homosexuals. I kept a distance from people who were known to be homosexuals. I hated them. When I look back, now I know the fear was of myself. I was keeping a distance not from others, but from myself. The hate, too, was for myself. Along with the fears, my shell grew harder too. I kept away from the society

 I remained invisible – Mr Cellophane.

Nobody knew who the real me was. The heterosexual world never thought I could be gay. It just takes for granted that everybody is a heterosexual. My relationships were plain and colourless. Love or hate, there was no passion. My father passed away three months back. I don’t think it is just coincidental that I am writing this after his death.

I love and respect my father. He was always helpful to all and was careful not to show discrimination based on caste or religion as much as possible. But I cannot deny the fact that he was the person who inculcated masculine straightness in me right from the childhood. He staunchly believed that dance is for girls. He despised and ridiculed my femininity, my love for dance. I stopped dancing. But I failed to maintain a sporty physique as he wanted. Until he was unwell and unable to speak properly, he enquired about my work-out schedule.

When he died, I cried. I cried not only for his death, but also for a life that I unwillingly forfeited. There were a few relationships that I lived through intensely. One such was a disastrous relationship I had with a cousin brother two years elder to me.

That happened during my college days and went on for more than 10 years until I broke up. His love – blind and possessive – was a burden. I couldn’t concentrate in my studies and mostly flunked the classes. I was overcome with the guilt of incest.

For many years after I broke up, the guilt continued to haunt me, until one of the foremost sexperts in the country told me such relationships—between cousins, brothers etc—are commonplace everywhere, including in Indian families. But the guilt had pushed me to the margins. I remained there forever, jealously ogling at the celebration of life, the happiness that flowed, around me. Whenever I tried to move towards the centre, I heard my own voice, life-less. I hated it.

When, after the studies, my friends started desperately looking for jobs, I remained clueless. For a mind in constant denial, everything remains hazy. What is he, one of my professors asked. Nobody knew. I didn’t know. I had to find out and thus started my exile.

Nowhere to hide

Why did I propose to my wife? I hit a wall whenever this question comes up in my mind. Didn’t I know that I was gay at that time? Definitely I knew but I never acknowledged it. I never spoke to anybody about my confusions. There was no easy access to the internet either. I thought it was this way with many men. After marriage I found myself easily adjusting to the new life. I love cooking. Maintaining the kitchen well came to me naturally.

My wife was happy about all this as well. But it was a playhouse set up by two best friends. There were no big tiffs. We enjoyed each other’s company. For some, interestingly, we were a model couple. I want to be a husband like him, one of her friends told her once. Days passed. Whenever I thought of telling my wife about by sexual orientation, I shuddered. For her, life had thrown up a puzzle. The more we tried opening the knots, the more we tied ourselves in knots because I never told her what the real issue was. After three years I gave up, she told me in one of our long discussions after I came out to her. But we remained together, faithful to each other.

Meanwhile, her health failed. She started getting frequent asthma attacks. She was sick. Most of our nights were sleepless. There came a day when guilt overtook me. I told her. To my surprise, I saw relief flashing across her face. And over the last four years, many things have changed. She became more confident about herself. She quit her high-paying software job and decided to pursue her passion. She is healthier now and doesn’t get asthma attacks. She knows the distance that stared in our face all through the first few years of our marriage was not her mistake. Life has become a lot easier for both of us.

After I came out to her, in the last four years, we have had many discussions. We spent many nights talking, trying to find answers to the whys of life. There are no clear answers. Why did I propose to my wife? Why did I marry a woman? Why didn’t I have the guts to face myself and realise that I am gay in time? That would have saved two lives, mine and her. There are days when a cold silence descends in our house. More than sex, it is the betrayal.

My guilt and her pain. Her pain and my guilt. We support each other emotionally: forgive, try to forget and move on. When I told her about my wish to write about my experiences, she said start loving yourself seamlessly. Can I? Can I, just once, end this self-imposed exile and go back to my home state? Start all over again? Be the person I naturally am no matter how effeminate? Correct the big mistake my life has been? Love myself? Love life? Be a dancer? (When I approached Bharatanatyam gurus recently, they were excited about teaching a 42-year-old, but said they had no time. They have time only for kids.) Upon coming to Mumbai after marriage, my wife had brought with her a small notebook from her college days. Why would you hide inside yourself, she had scribbled on the opening page of the book. This one-liner haunted my conscience throughout the married life.

A world crumbles

Why am I writing this now? I could have easily continued life as if nothing has happened. The fact that I have come out to my wife has made my guilt a little lighter. The few friends to whom I came out can keep it a secret. In front of the society, I would be a heterosexual, ‘normal’. But how long? Let me narrate a story from A. K. Ramanujan’s compilation of Indian folk tales. There lived a woman with her two sons and daughters-in-law. She was harassed by all the four. She had nobody to tell her miseries to and kept everything to herself.

As a result she started putting on weight. Her sons and their wives made fun of this. Don’t eat too much, they told her. One day, overcome by pain, she walked out towards the outskirts of the village. There she saw an abandoned house and went in. She told her complaints about the first son to the first wall. It came crumbling down. Then she spoke about the first daughter-in-law to the second wall, then about the second son to the third wall and about the second daughter-in-law to the fourth wall.

By the time all the four walls came down, she had also shed the extra weight that she had put on because of the accumulated grief. To me, the four walls are the system. When they come crumbling down, we are bound to sustain some injuries. But I hope there is a beautiful world that opens up beyond the walls. I do not mean to hide myself for long.

Coming out is a gradual process and I have only begun. Slowly, but surely, people related to me will come to know. There will be serious repercussions. Many will question me. I may not have answers for all of them. But once the dust settles down, I would know who my true friends and relatives are. There will be more pain, but I am ready to endure them. After all, I am responsible for the life I lived. I take the blame and that is also my redemption – for not being true to myself and also for not opting to fight. Ravi K.is a pseudonym. He works at Firstpost.

Read more at: http://www.firstpost.com/living/i-am-gay-i-am-married-to-a-woman-this-is-my-story-1364905.html?utm_source=ref_article

 

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Labourers’ hands chopped: SC notice to Odisha, AP

The Supreme Court on Monday took suo motu cognisance of a horrific incident of chopping off the right hands of two migrant labourers from Odisha by a contractor from Andhra Pradesh in December 2013.

Taking cognisance of a media report on the incident, a bench of Chief Justice P. Sathasivam and Justice Ranjan Gogoi issued notice to Chief Secretaries of Odisha and Andhra Pradesh.

According to the report, the incident occurred near a jungle in Belpada village in Kalahandi district of Odisha when the two labourers were being taken back to their homes to recover the money paid to them in advance when they were hired.

They were being taken back as they had refused to work in a brick kiln in Raipur district of Chhattisgarh.

On the way back, the contractor and his accomplice chopped off the right hands of the two workers, the report said.

The police have launched a manhunt for the contractor and his accomplice.

Read more — http://www.thehindu.com/news/national/labourers-hands-chopped-sc-notice-to-odisha-ap/article5622925.ece

 

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Gujarat HC – One can’t be forced to take the lie-detector test

The Gulf of Khambat is at the right-lower-cent...

The Gulf of Khambat is at the right-lower-center of the map of Gujarat on the Arabian Sea. (Photo credit: Wikipedia)

 

 

 

Mahendrabhai Lallubhai Patel vs State Of Gujarat & on 5 December, 2013

 

Bench: A.G.Uraizee

 

MAHENDRABHAI LALLUBHAI PATEL….Applicant(s)V/SSTATE OF GUJARAT

 

R/SCR.A/2306/2009=========================================

 

MAHENDRABHAI LALLUBHAI PATEL….Applicant(s)

 

Versus

STATE OF GUJARAT &1….Respondent(s)

Appearance:

 

MR ZUBIN F BHARDA, ADVOCATE for the Applicant(s) No. 1

MR NEERAJ SONI APP for the Respondent(s) No. 1

ORAL JUDGMENT

Heard learned advocate Mr. Zubin Bharda for the applicant and learned A.P.P. Mr. Neeraj Soni for the respondents Nos. 1 and 2.

The facts in brief giving rise to this application are that a First Information Report, being C.R. No. I – 1 of 2009 with Mahuva Police Station, District: Surat, for offences punishable under Section 279 and Section 304A of the Indian Penal Code and Section 177 and Section 134 of the Motor Vehicles Act, 1988, came to be lodged. During the course of investigation, the investigating office by letter dated 14th November 2009 (Annexure E) called upon the applicant to remain present at Forensic Science Laboratory, Gandhinagar, from 23rd November 2009 to 25th November 2009 (total three days) for the purpose of undergoing lie detection test. The applicant made a representation dated 16th November 2009 (Annexure F) against the letter (Annexure E) of respondent No.2 objecting to the proposal of the investigating officer to subject the applicant to lie detector test. The objection of the applicant was not favourably considered and by letter dated 17th November 2009 (Annexure G), once again, the applicant was asked to remain present in the Forensic Science Laboratory, Gandhinagar on the dates mentioned in letter dated 14th November 2009 (Annexure E). The applicant preferred this petition under Section 482 of the Code of Criminal Procedure, 1973 to quash the notice dated 14th November 2009 as he is called for undergoing lie detection test without his consent.

 

The issue involved in the present petition is no more res integra in asmuchas the Supreme Court in the case of Smt. Selvi v. State of Karnataka (AIR 2010 SC 1974) has

 

concluded as under:-

 

In our considered opinion, the compulsory administration of the impugned techniques violates the `right against self- incrimination’. This is because the underlying rationale of the 246 said right is to ensure the reliability as well as voluntariness of statements that are admitted as evidence. This Court has recognised that the protective scope of Article 20(3) extends to the investigative stage in criminal cases and when read with Section 161(2) of the Code of Criminal Procedure, 1973 it protects accused persons, suspects as well as witnesses who are examined during an investigation. The test results cannot be admitted in evidence if they have been obtained through the use of compulsion. Article 20(3) protects an individual’s choice between speaking and remaining silent, irrespective of whether the subsequent testimony proves to be inculpatory or exculpatory. Article 20(3) aims to prevent the forcible `conveyance of personal knowledge that is relevant to the facts in issue’. The results obtained from each of the impugned tests bear a `testimonial’ character and they cannot be categorised as material evidence.

 

We are also of the view that forcing an individual to undergo any of the impugned techniques violates the standard of `substantive due process’ which is required for restraining personal liberty. Such a violation will occur irrespective of whether these techniques are forcibly administered during the course of an investigation or for any other purpose since the test results could also expose a person to adverse consequences of a non-penal nature. The impugned techniques cannot be read into the statutory provisions which enable medical examination during investigation in criminal cases, i.e. the Explanation to Sections 53, 53-A and 54 of the Code of Criminal Procedure, 1973. Such an expansive interpretation is not feasible in light of the rule of `ejusdem generis’ and the considerations which govern the interpretation of statutes in relation to scientific advancements. We have also elaborated how the compulsory administration of any of these techniques is an unjustified intrusion into the mental privacy of an individual. It would also amount to `cruel, inhuman or degrading treatment’ with regard to the language of evolving international human rights norms. Furthermore, placing reliance on the results gathered from these techniques comes into conflict with the `right to fair trial’. Invocations of a compelling public interest cannot justify the dilution of constitutional rights such as the `right against self-incrimination’.

 In light of these conclusions, we hold that no individual should be forcibly subjected to any of the techniques in question, whether in the context of investigation in criminal cases or otherwise. Doing so would amount to an unwarranted intrusion into personal liberty. However, we do leave room for the voluntary administration of the impugned techniques in the context of criminal justice, provided that certain safeguards are in place. Even when the subject has given consent to undergo any of these tests, the test results by themselves cannot be admitted as evidence because the subject does not exercise conscious control over the responses during the administration of the test. However, any information or material that is subsequently discovered with the help of voluntary administered test results can be admitted, in accordance with Section 27 of the Evidence Act, 1872. The National Human Rights Commission had published `Guidelines for the Administration of Polygraph Test (Lie Detector Test) on an Accused’ in 2000. These guidelines should be strictly adhered to and similar safeguards should be adopted for conducting the `Narcoanalysis technique’ and the `Brain Electrical Activation Profile’ test. The text of these guidelines has been reproduced below:

(i) No Lie Detector Tests should be administered except on the basis of consent of the accused. An option should be given to the accused whether he wishes to avail such test.

(ii)If the accused volunteers for a Lie Detector Test, he should be given access to a lawyer and the physical, emotional and legal implication of such a test should be explained to him by the police and his lawyer.

(iii)The consent should be recorded before a Judicial Magistrate.

(iv)During the hearing before the Magistrate, the person alleged to have agreed should be duly represented by a lawyer.

(v) At the hearing, the person in question should also be told in clear terms that the statement that is made shall not be a `confessional’ statement to the Magistrate but will have the status of a statement made to the police.

(vi) The Magistrate shall consider all factors relating to the detention including the length of detention and the nature of the interrogation.

 

The actual recording of the Lie Detector Test shall be done by an independent agency (such as a hospital) and conducted in the presence of a lawyer.

A full medical and factual narration of the manner of the information received must be taken on record.

4. Thus,

 

it could be seen from the conclusion of the Apex Court that an accused person cannot be subjected to lie detector test without consent of the accused persons. Admittedly, the applicant is called by the investigating officer for undergoing the tests in the Forensic Science Laboratory, Gandhinagar, as mentioned in Annexure A notice issued by respondent No.2, without their consent. In view of the judgment of the Apex Court in Smt. Selvi (supra), the applicants cannot be subjected to lie detector test or the other similar tests without consent of the suspect or the accused in violation of the guidelines for administering polygraph test (lie detector test) on the accused.

 

5. In view of the above, the present application needs to be accepted and accordingly it is allowed. The notice dated 14th November 2009 (Annexure E), calling upon the applicants to remain present in Forensic Science Laboratory, Gandhinagar for lie detector test, given by Police Inspector, Odhav Police Station is hereby quashed and set aside. Rule is made absolute.

 

(A.G.URAIZEE,J)

 

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Ex- NUJS intern alleges sexual harassment by another Supreme Court judge #Vaw

Maneesh Chhibber | New Delhi | Updated: Jan 10 2014,
On Dec 5, a full court said that representations against former judges are not entertainable.On Dec 5, a full court said that representations against former judges are not entertainable.
SUMMARYSaying that she was emboldened by the stand taken by her fellow student who complained of alleged sexual harassment by former Supreme Court Justice…

Saying that she was emboldened by the stand taken by her fellow student who complained of alleged sexual harassment by former Supreme Court Justice A K Ganguly, another young woman and former student of West Bengal National University of Juridical Sciences, Kolkata, is learnt to have complained to Chief Justice of India Justice P Sathasivam that she was sexually harassed by a former judge of the Supreme Court.

What makes this case more significant than the one involving Justice Ganguly — who resigned two days ago as chief of the West Bengal Human Rights Commission — is the fact that unlike Ganguly, who had retired when the alleged sexual harassment incident involving him took place, the judge in this case was a sitting judge of the Supreme Court when the alleged incident took place. And the complainant was, officially, an intern in his office.

Her internship began in May 2011 when the judge and his office were actively involved in organising a conference. That judge now holds a post-retirement job having been nominated to it by the then Chief Justice of India.

The Indian Express has confirmed from sources in Delhi and Kolkata that the woman sent her detailed complaint to the CJI last month. However, she was told by the apex court that there was little the CJI could do and that she could take appropriate action under law. It is likely that the complainant will file a petition seeking action against the former judge.

In her complaint, the woman is learnt to have narrated two instances of how she was allegedly sexually assaulted by the former judge. Sources said that “strongly disturbed and upset” with the behaviour of the judge, the woman left the internship mid-way. She is learnt to have talked to her close friends and family about the incident. Sources said she decided to bring the alleged incident to the CJI’s notice after the swift response of the apex court to the allegations against Ganguly.

Despite attempts, the CJI could not be reached for his comment. However, a source cited the December 5 decision of the full court, where it was made clear that “representations made against former judges of this court are not entertainable by the administration of the Supreme Court”, to say why the CJI had not taken action on the complaint.

When asked, Additional Solicitor General Indira Jaising refused to comment saying she had no information about this case. On the full court decision, Jaising said: “Let’s divide this issue into two parts. One is, will they (SC) inquire into the conduct of retired judges when the incident occurred after retirement (as in the case of Ganguly)? The second is will they inquire into the conduct of a judge who maybe retired today but was a sitting judge when the incident occurred? In my opinion, the full-court order, if it applies to an incident which occurred when the judge was a sitting judge is not a correct decision. I would maintain that, forget jurisdiction, they have the duty and the authority to investigate any complaint made by any woman that she was harassed by a person who was a sitting judge when she was an official intern with the SC. There’s no way they can wash their hands of it.”

But in his order, Justice Sathasivam, disposing the Ganguly matter in light of the report of the three-judge probe panel constituted by him on November 12, said that since the complainant “was not an intern on the roll of the SC and the concerned judge has already demitted office on account of superannuation on the date of incident”, no follow-up action was required by the apex court.

On November 6, 2013, a lawyer who had interned with Justice Ganguly had blogged about being sexually assaulted by the judge in December 2012 when the judge was retired while the complainant was not working with him as an intern.

The committee of three judges constituted to probe the matter said that the statement of the intern “prima facie” disclosed an act of “unwelcome behaviour (unwelcome verbal/non-verbal conduct of sexual nature)” by Justice Ganguly.

Read more here– http://www.financialexpress.com/news/another-intern-alleges-sexual-harassment-by-another-supreme-court-judge/1217467/0

 

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#India – Every acquittal is failure of justice delivery system: SC

J. VENKATESAN, The Hindu Jan 8th 2013

The Supreme Court has expressed its concern and anguish over the number of acquittals taking place in the country and said “Every acquittal should be understood as a failure of the justice delivery system in serving the cause of justice.”
The HinduThe Supreme Court has expressed its concern and anguish over the number of acquittals taking place in the country and said “Every acquittal should be understood as a failure of the justice delivery system in serving the cause of justice.”

The Supreme Court has expressed its concern and anguish over the number of acquittals taking place in the country and said “Every acquittal should be understood as a failure of the justice delivery system in serving the cause of justice.”

A Bench of Justices C.K. Prasad and J.S. Khehar said “the person concerned may have to suffer periods of incarceration for different lengths of time. They (accused) suffer captivity and confinement most of the times (at least where they are accused of serious offences), till the culmination of their trial. In case of their conviction, they would continue in confinement during the appellate stages also, and in matters which reach the Supreme Court, till the disposal of their appeals by this Court. By the time they are acquitted at the appellate stage, they may have undergone long years of custody. When acquitted by this Court, they may have suffered imprisonment of 10 years, or more. When they are acquitted (by the trial or the appellate court), no one returns to them; what was wrongfully taken away from them.”

Writing the judgment, Justice Khehar said “The system responsible for the administration of justice is responsible for having deprived them of their lives, equivalent to the period of their detention. It is not untrue, that for all the wrong reasons, innocent persons are subjected to suffer the ignominy of criminal prosecution and to suffer shame and humiliation. Just like it is the bounden duty of a court to serve the cause of justice to the victim, so also, it is the bounden duty of a court to ensure that an innocent person is not subjected to the rigours of criminal prosecution.”

The bench said “every acquittal should ordinarily lead to the inference that an innocent person was wrongfully prosecuted. It is therefore, essential that every State should put in place a procedural mechanism in six months, which would ensure that the cause of justice is served, which would simultaneously ensure the safeguard of interest of those who are innocent.” The Bench passed the order while acquitting Kishanbhai of Gujarat, accused of raping and killing a six-yea-old girl for a consideration of Rs. 1,000 on the ground that there were many lapses in the probe.

The Bench directed the Home Department of every State to examine all orders of acquittal and to record reasons for the failure of each prosecution case. It said “A standing committee of senior officers of the police and prosecution departments should be vested with aforesaid responsibility. The consideration at the hands of the above committee should be utilised for crystallising mistakes committed during investigation, and/or prosecution, or both.”

It said “The Home Department of every State Government will incorporate in its existing training programmes for junior investigation/prosecution officials’ course-content drawn from the above consideration. This would ensure that those persons who handle sensitive matters concerning investigation/prosecution are fully trained to handle the same. Thereupon, if any lapses are committed by them, they would not be able to feign innocence, when they are made liable to suffer departmental action, for their lapses. On the culmination of a criminal case in acquittal, the concerned investigating/prosecuting official(s) responsible for such acquittal must necessarily be identified. A finding needs to be recorded in each case, whether the lapse was innocent or blameworthy. Each erring officer must suffer the consequences of his lapse, by appropriate departmental action, whenever called for. Taking into consideration the seriousness of the matter, the concerned official may be withdrawn from investigative responsibilities, permanently or temporarily, depending purely on his culpability.”

The bench directed the Registry to transmit a copy of this judgment to the Home Secretaries of all State Governments and Union Territories within one week and they were asked to ensure compliance of the directions.

 

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