Review: Courts make important observations about Citizenship, action against Religious trusts, Human Rights, and the Right to Education.
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 Government is under a legal obligation to forward its comments to the SHRC on the report of SHRC including the action taken or proposed to be taken. If the concerned Government or authority fails to implement the recommendation of the SHRC within the time stipulated under Section 18(e) of the Act, the SHRC can approach the Constitutional Court under Section 18(b) of the Act for enforcement by seeking issuance of appropriate Writ/order/direction.
- The State has no discretion to avoid implementation of the recommendation and in case the State is aggrieved, it can only resort to legal remedy seeking judicial review of the recommendation of the SHRC.
- The SHRC can order recovery of the compensation from the State and payable to the victims of the violation of human rights under Section 18 of the Act and the State, in turn, could recover the compensation paid, from the Officers of the State who have been found to be responsible for causing human rights violation. However, it is clarified that before effecting recovery from the Officer of the State, the Officer concerned shall be issued with a show-cause notice seeking his explanation only on the aspect of quantum of compensation recoverable from him and not on the aspect whether he was responsible for causing human rights violation.
- In regard to the imposition of penalty as a consequence of a delinquent official being found guilty of the violation, a limited departmental inquiry may be conducted only to ascertain the extent of culpability of the Official concerned in causing violation in order to formulate an opinion of the punishing Authority as to the proportionality of the punishment to be imposed on the official concerned.
- It is open to the aggrieved officers/employees to approach the competent Court to challenge the findings as well as recommendations of the SHRC.
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.
- The survey notes that the average income of the sample was around Rs.1,990 per month and more than 95 percent of the households had monthly income less than Rs.4,400.
- Despite the State Government’s notices on temporary fee relief, around 54 percent of the parents had been asked to pay the fees during the months of the lockdown. Over 40 percent of the parents with children in the private schools were unaware of the fee relief. Among those asked to pay the fees, more than 50 percent admitted that it was difficult for them to arrange the required amount and meet the payment deadline. Another major concern revealed in the report was pertaining to the dropouts. The inability to pay the fees has led some parents to consider an alternate option of transfers to other schools or even dropping their children out of school for the year.
In response, the State submitted that:
- The mid-day meal scheme is presently being implemented in a total of 32,822 Government primary schools in the State of Gujarat. In order to ensure that the benefits of the mid-day meal scheme are provided to the entitled beneficiary students, in spite of the closure of the schools, a decision was taken by the Government to provide the Food Security Allowance in lieu of the mid-day meals to all the entitled beneficiary students of Standards 1 to 8 vide the Government Resolution dated 23 March 2020, passed by the Education Department.
- For the betterment of the students whose studies may get affected due to the closure of schools, the State of Gujarat passed a Government Resolution on 05 June 2020, for the Government, non-Government (grant-in-aid), and self-financed, primary, secondary, and higher secondary schools of the entire State enumerating instructions for conducting Home Learning for the students from Standards 1 to 12. Various initiatives have been evolved by the State Government for the purpose of online learning.
- In the wake of the COVID-19 pandemic, to lessen the burden of the school fees on the parents, the State Government passed a resolution dated 16 July 2020, granting 100% fee relief for the students studying in all the self-financed schools. The State Government arranged two meetings with the Self-Financed Schools Management Associations on 17 August 2020 and 20 August 2020 respectively. However, despite all the efforts, no agreement could be arrived at in respect of the reduction in the school fees, between the state authorities and the Self Finance Schools Management Associations.
- After detailed discussions with the members of the Parents Association and the School Management Associations, the Government, after obtaining their consent, issued the resolution dated 07 October 2020, to provide a 25% fee waiver to the students of all the self-financed schools in the State.
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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