Courts make observations about Citizenship, action against Religious trusts, Human Rights
Sai Krishna Muthyanolla
February 10, 2021
Gauhati HC: Citizenship of a person is a valuable right
The Gauhati high court was hearing an appeal filed by Nasima Begum (petitioner) against the order of a tribunal dated 12 October 2018, wherein the petitioner was declared as a foreigner of the post-1971 stream. The high court held that citizenship of a person is a valuable right, and the tribunal has acted half-heartedly.
The Tribunal had issued notice to the petitioner asking her to prove her Indian Citizenship. The petitioner claimed that she was born and brought up at village Mora Chengeli, P.S. – Halem in the Sub-Division of Gohpur, District – Biswanath. Her father’s name is Sultan Ansari. In the year 1998, she got married to Md. Allaudin Halder, resident of Village-Nalanibari, P.S. Halem in the Sub-Division of Gohpur, District – Biswanath. According to the petitioner, her father’s name appeared in the voters’ lists of 1965 and 1971. The petitioner studied in Indira Gandhi L.P. School and the Headmaster of the school-issued her a certificate displaying the petitioner to be the daughter of Sultan Ansari. For this purpose, the petitioner produced two other documents, namely, a Gaonbura certificate and a certificate issued by the Secretary of the Panchayat. The Gaonbura and the Secretary of the Panchayat were not examined before the Tribunal.
The Tribunal, at the behest of the petitioner, issued summons to the Headmaster, but the Headmaster did not appear before the Tribunal. Therefore, a bailable warrant of arrest was issued against the said Headmaster. Finally, the Tribunal issued a non-bailable warrant of arrest on 13 November 2017, for securing the presence of the Headmaster of Indira Gandhi L.P. School but police did not execute the said warrant of arrest. Finally, the Tribunal delivered the opinion without examination of the Headmaster and declared the petitioner to be a foreigner.
The high court held that citizenship of a person is a valuable right, and it appears that the Tribunal acted half-heartedly while trying to enforce the attendance of the Headmaster of Indira Gandhi L.P. School. The petitioner could not prove the school certificate only because of the failure of the Tribunal to enforce the attendance of the Headmaster of Indira Gandhi L.P. School. Therefore, the tribunal’s order suffers from and hence not sustainable as per the HC.
After considering all submissions, the bench of Justice Manojit Bhuyan and Justice Parthivjyoti Saikia was of the opinion that for the ends of justice at least one more opportunity should be afforded to the petitioner to contest the police reference on merits. On such production and on the application made for bail along with documents, the Tribunal shall take steps to release the petitioner on bail. It is expected that the Tribunal will fix the next immediate date within a reasonable time, enabling the petitioner to produce further evidence.
The judgement also makes it clear that if the petitioner defaults in appearing before the Tribunal on dates to be fixed in the case and also fails to take the required steps, it shall be open to the Tribunal to pass such order as may be deemed fit and proper and in accordance with the law.
Bombay HC: Police officers and judicial officers should work with a ‘secular mind’
In the case of Shri. Namdev Sahebrao Garad vs. State of Maharashtra and others, the Bombay high court held that government authorities, including police officers and judicial officers, should work with a ‘secular mind’ and avoid the general fear of inviting trouble in matters involving religious feelings.
The court was hearing a petition filed by Namdev Garad, a former trustee of the Jagdamba Trust alleging the commission of ‘illegal acts’ by the trustees of the trust. It is the contention of the petitioner that during the year 2011 and later some illegal acts were committed by the trustees of Devi Sarvajanik Trust situated at Mohote in Ahmednagar. They involve burying around 2 kg of gold in the name of Yantras and showing the additional expenditure of Rs. 25 lakh for doing ceremonies in respect of so-called Yantras.  It is submitted that there is a clear probability that by showing that Yantras weighing 2 kg of gold were buried, the gold and aforesaid amount were misappropriated and so, these acts of the trustees need to be investigated by the police. It is contended that a person who was working as Project Officer of the trust had committed illegal activities and in the year 2010 and an inquiry was made against that Project Officer. The Project Officer continued to work as Chief Executive Officer (C.E.O.) of the trust and this circumstance creates a probability that for many years such illegal activities of the trust are going on.
The petitioner further submitted that a question was raised in State Legislative Assembly about such illegal activities and an inquiry was also directed. He contended a farce was created of the inquiry and nobody cooperated in the inquiry and no action was taken even when complaints were made by the petitioner and others in respect of the illegal activities.
The court, after examining the record of inquiry made by the clerical staff of the office of Deputy Charity Commissioner, noted that the Deputy Charity Commissioner has not passed any order which is expected after making an inquiry.
The judgement emphasises that the act of the trustees cannot be called as only irregularity. The circumstances are sufficient to make out the case of breach of trust for the present purpose. These activities apparently fall under the offences punishable under sections 420, 406, etc. of IPC. It is also cheating of the poor people who had donated the ornaments to the endowment for purposes mentioned in the scheme of the trust.
The judgement highlights that the object behind the Maharashtra Public Trust Act is to prevent and stop the prevailing abuses, malpractices, and defects in the administration of such trust and endowment. The court felt that in a case like the present one, the acts done in breach of the provisions cannot be ignored.
The bench of Justice T.V. Nalawade and Justice M.G. Sewlikar highlighted that the inaction on the part of the Deputy Charity Commissioner in the case shows the authorities did not conduct the investigation properly due to general fear of hurting religious sentiments. The general fear may be the possibility that they may invite trouble as the matter involves religious feelings and it can be viewed as an act against God. In view of Article 51-A of the Constitution of India, this Court holds that the authorities are expected to work with the secular mind in such a case and they need to adhere to the ‘truth’.
The authority needs to have a scientific approach in such matters, and they need to adhere to the provisions of law. With that approach, they need to make inquiries and investigations and take action. If no such approach is adopted, ‘truth’ will always suffer defeat and the tendency like one shown by the trustees in the present matter will go on increasing.
The Court holds that even the trustees like the petitioner who was party earlier can be made accused as one of the conspirators. All the trustees who were party to the resolution and who approved the expenditure subsequently also can be booked for these illegalities. The complaint is already given and that can be treated as the base for starting the investigation, for registration of the crime. The judgement directs the concerned police station having jurisdiction over the religious endowment to register the crime on the basis of the complaint. Crime can be registered for the offence of conspiracy, for the offence of cheating, for the offence of misappropriation, for the offence of breach of trust, and also for offence punishable under the Black Magic Act and also under the other provisions which police may deem fit. It also specifies that the investigation needs to be completed within six months from the date of order.
Madras HC: Recommendation of State Human Rights Commission is binding on Government
In the case  Abdul Sathar vs. Principal Secretary to the Government, the Madras high court has held that the recommendation of State Human Rights Commission (SHRC) under Section 18 of the Protection of Human Rights Act, 1993 is binding on the Government or the relevant Authority. It has also suggested amendments in the Protection of Human Rights Act to provide an internal/self-contained mechanism for the Human Rights Commission to enforce its recommendations.
In this regard, the judgement outlines the following:
The Bench comprising of Justices S Vaidyanathan, Parthiban and M Sundar also held that it is an adjudicatory order which is legally and immediately enforceable.
Gujarat HC: Education should never be compromised
In taking Suo Moto cognizance of an article dated 18 December 2020 published by the Indian Express, the high court made the following observations and issued relevant directions.
The article reported a survey conducted by the Indian Institute of Management, Ahmedabad (IIM-A) and the UNICEF, Gujarat, with respect to the various problems and hardships faced by many households during the period of lock-down, more particularly, the hardship that was caused on account of the sudden stoppage of the mid-day-meals in the Government schools.
In response, the State submitted that:
Having duly considered the survey report and submission of the State government, the high court emphasised that inability to pay the fees should not compel the parents to stop providing education to their children. It is possible that the help rendered by the Government might not have reached to few families and this is what the survey talks about. The judgement directs that the state government pay due attention to such genuine cases and try to render assistance in all possible manner.
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