In this roundup of court judgements, we look at Constitutional Courts’ remarks & directions about legislative intent of laws, disbursement of compensation and expeditious adjudication of MACT claims, Age recorded by JJ Board or CWC, and Community Kitchen Policy.
Supreme Court: Judges should not strain plain words of the statute to destroy legislative intent.
In the case Attorney General for India vs. Satish and another, the Supreme Court set aside the controversial judgment of the Bombay HC which held that ‘skin-to-skin’ contact is necessary for the offence of sexual assault under Protection of Children from Sexual Offences (POCSO) Act.
The Supreme court was hearing appeals filed by the Attorney General of India, the National Commission for Women, and the State of Maharashtra against the judgment of the Bombay High Court.
Earlier, in the case, Satish vs. the State of Maharashtra, the Nagpur Bench of the Bombay High Court held that groping a child’s breasts without ‘skin-to-skin contact’ would amount to ‘molestation’ under the Indian Penal Code (Section 354 of IPC) but not the graver offence of ‘sexual assault’ under the Protection of Children from Sexual Offenses (POCSO) Act. In conclusion, a single bench of Justice Pushpa Ganediwala sentenced the 39-year-old man under Section 354 IPC (outraging a woman’s modesty) to one-year imprisonment for the minor offence.
‘Sexual assault’ under section 8 of the POCSO Act would attract a minimum punishment of three years as compared to outraging of a woman’s modesty under section 354 of the IPC, which attracts a minimum punishment of only a year. Both the offenses carry a maximum imprisonment of five years.
The Nagpur bench interpreted the words “physical contact” under Section 7 of POCSO to mean “direct physical contact” i.e. skin -to- skin contact with sexual intent without penetration.”
The bench of Justice Uday Umesh Lalit, Justice S Ravindra Bhat and Justice Bela M Trivedi stated that restricting ‘touch’ or ‘physical contact’ under Section 7 of POCSO is absurd and will destroy the intent of the Act, which is enacted to protect children from sexual offences.
The apex court bench held that the interpretation adopted by the Bombay High Court not only limits the operation of the law but tends to subvert the intention too. The judgement notes that laws like POCSO were enacted to overcome the “limitations in law dealing with acts that undermined the dignity and autonomy of women and children”. The intent is that the offending behaviour (whether the touch or other act involving physical contact), should be motivated with sexual intent. Therefore, it is abundantly clear that Section 7 of POSCO covers both direct and indirect touch.
The apex court notes that “the reasoning in the High Court’s judgment quite insensitively trivializes – indeed legitimizes -an entire range of unacceptable behaviour which undermines a child’s dignity and autonomy, through unwanted intrusions. “
Supreme Court: Issues additional directions for disbursement of compensation and expeditious adjudication of MACT claims.
In the case Bajaj Allianz General Insurance Company Private Ltd. vs. Union of India, the Supreme Court issued additional directions regarding disbursement of compensation and expeditious adjudication of Motor Accidents Claims Tribunal (MACT) by online mechanism.
The high court was hearing a writ petition filed by Insurance Company Bajaj Allianz seeking directions for facilitating compensation disbursement process and expedition of cases before Motor Accidents Claims Tribunal in terms of previous orders of the High Court.
The bench of Justices SK Kaul and MM Sundresh issued the following directions:
- Format for payment advised for remittance of compensation to be followed across the country: The bench considered the format for payment advised for remittance of compensation devised and followed in the Madras High Court and the Rajasthan High Court and that the same format be followed across the country.
- Interest on disbursement of compensation to beneficiaries to be ensured to their benefit: The bench did not agree with the suggestion of Amicus Curiae as per which the amounts deposited in the Tribunals were being credited in a savings account should be credited to a current account. The bench was of the view that the amounts should continue to be credited with the savings account to earn interest.
- Insurance company/depositor to communicate factum of deposit expeditiously to MACT with a copy to the beneficiary: For putting the insurance company’s liability to an end, directions were also issued to the insurance company/depositor to communicate the factum of deposit forthwith/ expeditiously to the concerned MACT with a copy to the beneficiary on deposit of amount.
- District Medical Board to follow guidelines issued by Ministry of Social Justice and Empowerment: To bring Pan India uniformity, directions were also issued to the District Medical Board to follow the guidelines issued by the Ministry of Social Justice and Empowerment, Government of India (Gazette Notification S. No. 61, dated 05 January 2018) for issuance of disability certificate.
- The aspect of disparity in TDS certificate can be redressed by directions to legal services authority or any agency/mediation group to assist the claimant in obtaining a Pan Card and amending the formats across the country: With regards to the aspect of disparity in the Tax Deduction at Source (TDS) certificate in Motor Accident Claims, wherein from 10% to 20% dependent on whether the claimants have a Pan Card or not, the bench held that the same can be redressed by directing the Legal Services Authority or any Agency/Mediation Group to assist the claimant for obtaining a Pan Card in order to avoid 20% deduction of tax at source.
- Registrar General of High Courts to show compliance of directions passed on 16 March 2021: The bench noted that only 13 states have complied with the directions passed on 16 March 2021 for circulation of those directions to the local Police stations, MACT Courts to improve the efficiency.
- Insurance companies to develop a common mobile app within 2 months from the date of order: The bench held that the insurance company has to follow earlier directions for developing a common mobile app. The bench further held that either company develops the app, or the Government is to develop an app, which would have to be imposed on the insurance companies.
- An alternative mechanism to ensure availability of sufficient pool with the State Corporations: With regards to the feasibility of withdrawing exemptions given to the vehicles of the State Corporation(s) for insurance, the bench held that it was not feasible to withdraw exemptions. However, the bench was directed for devising an alternative to creating a mechanism to ensure the availability of sufficient fund pool with the State Corporations for meeting their liabilities towards the claimants.
The matter has been posted for further hearing on 27 January 2022.
Supreme Court: Age recorded by JJ Board or CWC deemed to be true age of accused.
In the case Rishipal Singh Solanki vs State of UP & Ors, the Supreme Court held that for the purpose of Juvenile Justice Act 2015, the age was recorded by the Juvenile Justice Board or Child Welfare Committee (CWC) will be deemed to be the true age of the person.
The apex court was hearing a plea challenging Allahabad High Court’s order sustaining the judgment of the District & Sessions Court as well as of the Juvenile Justice Board declaring the accused a juvenile delinquent. In the present case, the victim approached the Supreme Court challenging the declaration of the accused as a juvenile, arguing that the matriculation certificate can’t be a conclusive document for determining the age of the juvenile irrespective of other material discrepancies in the oral testimony of the witnesses or other documents being produced.
The bench of Justice DY Chandrachud and Justice BV Nagarathna held that the age recorded by the Committee or the Board for the purpose of the JJ Act, 2015 be deemed to be the true age of the person as per the deeming provision Section 94 (3) of the JJ Act, 2015. In case the Board or Committee has reasonable grounds about them being a child or not, it can undertake the process of determination of age by seeking evidence, as per Section 94 of the Act.
The Bench has also specified the evidence on which the process of age determination can be done by the Board in cases of such doubts:
- Date of birth certificate from the school or the matriculation certificate from the concerned board, if available or in the absence thereof.
- The birth certificate is given by a corporation or by a municipal authority or a panchayat and in the absence of the above.
- Age has to be determined by an ossification test or any other medical age determination test conducted on the orders of the committee or the board.
In the present case, the bench noted that there is no other document indicating the date of birth of the person contrary to what has been indicated in the matriculation certificate and therefore such a discrepancy in the date of birth does not arise.
In the absence of any contrary evidence, the Bench refused to differ from the order of the High court.
Supreme Court: The welfare state has to ensure no one dies of hunger; Gives Centre last chance to frame Community Kitchen Policy.
In the case Anun Dhawan and others vs. Union of India and others, the Supreme Court emphasised that a welfare state has a constitutional duty to ensure that no one dies of hunger and granted 3 weeks’ time to the Central Government, as the last opportunity, to frame a pan-India policy on community kitchens, after taking the view of different state governments.
The apex court was acting upon a writ petition which seeks the formulation of a community kitchen policy to avoid starvation deaths. In an earlier order, the Supreme court on 27 October 2021 had directed the Central Government to come up with a scheme for establishing pan-India community kitchens, after interacting with the state governments.
The apex court expressed displeasure over the affidavit filed by the under-secretary of the Union Ministry of Consumer Affairs, Food and Public Administration. The court observed that the Principal Secretary had to file the affidavit and also expressed dissatisfaction over the contents in the affidavit, observing that it merely recorded the information already given by the states regarding the respective community kitchen schemes run by them. Further, the court pointed out that the affidavit does not say anything about the policy decision taken by the Centre.
The Attorney General for India assured that the Centre will come out with a concrete scheme within the framework of the National Food Security Act.
The bench of Chief Justice of India NV Ramana emphasised that the scheme needs to have a statutory framework so that it cannot be discontinued on a change of policy.