Constitutional responsibility of government to dispose of dead bodies
Sai Krishna Muthyanolla
March 10, 2021
In this roundup of the important court judgments, we look at directions about the nature of offences under Section 295A, OBC reservations, the responsibility of government to dispose of dead bodies, enabling access to potable and arsenic-free drinking water.
Tripura HC: Careless insults to religion without any deliberate or malicious intention would not come within the Section 295A.
In the case Dulal Ghosh v. State of Tripura & Ors, the Tripura high court held that insults to religion made unwittingly or carelessly or without any deliberate or malicious intention to outrage the religious feelings of a class would not come within the Section 295A.
The court was hearing the appeal filed by the petitioner to quash an FIR filed against him filed under Section 295A of the Indian Penal Code.
The complainant submitted that the petitioner hurt the religious feelings of the Hindu community by posting a comment on his Facebook, where he referred to Geeta (Hindu religious scripture) as “thakbaji Gita” (meaning deceitful or swindling). The complainant further submitted that the petitioner always puts up un-tasteful and obscene comments on the Hindu religion.
The petitioner contended that the post in question is deliberately twisted and misinterpreted. He had neither the intention nor desired to hurt the religious feelings of any community or class of citizens and therefore, appealed that the FIR be quashed since even after taking the allegations made in the complaint on the face value, no offence can be stated to have been committed.
After considering all submissions, the high court noted that with the rapid spread of social media platforms, the right to free speech has got an entirely new dimension. While presenting on the nature of Section, the high court referred to the case of Ramji Lal Modi versus State of U.P, where a Constitution Bench of the Supreme Court considered a challenge to the constitutionality of Section 295A of IPC on the ground that it transgresses the guarantee of free speech. The judgement notes that Section 295A does not penalise any and every act of insult to or attempt to insult the religion or religious beliefs of a class of citizens but it penalises only those acts which are perpetrated with the deliberate and malicious intention of outraging the religious feelings of that class.
In this context, the bench of Chief Justice Akil Kureshi highlighted that insults to religion made unwittingly or carelessly or without any deliberate or malicious intention to outrage the religious feelings of a class would not come within the said section. The judgement concluded that the expression used by the petitioner is in total isolation, without virtually any background or foreground, therefore would not fit within the scheme of Section 295A of IPC. The judgment pronounced that the petitioner can hold his personal beliefs and within the framework of law and the said FIR against him was quashed.
Supreme Court: OBC reservations cannot exceed the aggregate of 50 per cent of the total seats in the local bodies
In the case Vikas Kishanrao Gawali vs. the State Of Maharashtra, the Supreme Court held that OBC reservations are permissible only to the extent it does not exceed the aggregate of 50 percent of the total seats in the local bodies reserved for SCs/STs/OBCs taken together.
The apex court was hearing a writ petition seeking to quash Section 12(2)(c) of the Maharashtra Zilla Parishads and Panchayat Samitis Act, 1961 that provides for reservation exceeding 50 percent in Zilla Parishads and Panchayat Samitis of districts Washim, Akola, Nagpur, and Bhandara. A district-wise chart was presented to illustrate the excess reserved percentage and seats (more than an aggregate of 50 percent of total seats).
The judgement notes that the thumb rule is that of proportionate reservation. The legal position is that the upper ceiling of 50 percent (quantitative limitation) with respect to vertical reservations in favour of SCs/STs/OBCs taken together should not be breached in the context of local self-government. Exceptions can only be made in order to safeguard the interests of the Scheduled Tribes in the matter of their representation in panchayats located in the Scheduled Areas.
The judgement specified that the quantum of reservation for OBCs in the local body should be provisioned to ensure that it does not exceed the quantitative limitation of 50 per cent (aggregate) of vertical reservation of seats for SCs/STs/OBCs taken together. Further, the State legislations must not simply provide a uniform and rigid quantum of reservation for OBCs in local bodies across the state without a proper enquiry into the nature and implications of backwardness by an independent Commission about the imperativeness of such reservation.
The argument of the State was that the reservations in favour of OBCs must be linked to the population in the State. To this, the judgement has expounded about the distinction in the matter of reservation in favour of SCs and STs on the one hand, which is a “constitutional” reservation linked to population unlike in the case of OBCs which is a ‘statutory’ dispensation. Therefore, the latter reservation for OBCs must be proportionate in the context of nature and implications of backwardness and in any case, is permissible only to the extent it does not exceed the aggregate of 50 per cent of the total seats in the local bodies reserved for SCs/STs/OBCs taken together.
In conclusion, the bench of Justice AM Khanwilkar, Indu Malhotra, and Ajay Rastogi held that Section 12(2)(c) of the 1961 Act needs to be read down.
Calcutta HC: Constitutional & Statutory responsibility of government to dispose of dead bodies which are not being cared for.
In the case Lakshmikanta Lagar & Ors. vs. The State of West Bengal & Ors., the high court held that in the ultimate situation of dead bodies not being cared for by the near and dear ones, is the constitutional and statutory responsibility of the Government or the local self-government.
The court was dealing with a plea seeking installation of an electric chulli for a certain area as absolutely essential for taking care of dead bodies not being cared for by relatives.
The bench of Chief Justice Thottathil B. Radhakrishnan and Justice Arijit Banerjee was of the view that providing an electric chulli for the areas in question is absolutely essential in the larger interest of managing right to life and connected issues particularly, decent disposal of human remains.
The court directed the District Magistrate and related officials to install electric chulli for the utility of the people, the majority of whom are economically and socially marginalised, within a period of a fortnight from the day of the judgment.
Meghalaya HC: Formulate a policy for enabling easy access to potable and arsenic-free drinking water.
In the case of Dr. Tilok Dasgupta v. State of Meghalaya & Ors., the High Court directed the State of Meghalaya to formulate a policy for enabling easy access to potable and arsenic-free drinking water.
On 16  February 2021, the High Court directed the State of Meghalaya, to furnish a detailed report providing the exact number and names of those villages that, to date, do not have any access to potable and arsenic-free drinking water. The submitted report did not reveal any policy of the State Government other than a reference to the Jal Jeevan Mission programme of the Central Government’s Ministry of Jal Shakti.
The Bench of Justice H. S. Thangkhiew and Justice Biswanath Somadder noted that since the State of Meghalaya does not have any scheme/policy of its own, it has directed the State of Meghalaya to formulate a policy that should lay down a roadmap for those people residing in this State, who do not have any easy access to potable and arsenic-free drinking water.
Featured Image: Important Court Decisions