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Review: Supreme Court rules that summoning and detaining a person without any registered crime is illegal

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In this roundup of court judgements, we look at Constitutional Courts’ remarks & directions on compensation and rehabilitation of families of deceased manual scavengers, the definition of Kashmiri Pandit vis-à-vis PM’s Relief Package, illegal detention, and access to information.

Bombay HC: Directed compensation and rehabilitation of widows of three deceased manual scavengers.

In the case Vimla Govind Chorotiya & Ors. Vs. State of Maharashtra & Ors., the high court directed the concerned District Collector to compensate and rehabilitate widows of three manual scavengers, who lost their lives cleaning septic tanks. The court directed compensation of Rs. 10 lakhs to be paid within a period of 4 weeks in accordance with the decision of the Supreme Court in Safai Karamchari Andolan Vs Union of India.

In the Safai Karamchari Andolan Vs. Union of India judgement, the Supreme Court had observed that it is the duty of all States and the Union Territories to fully implement the provisions of the Prohibition of Employment of Manual Scavengers Act, 2013 and to take action against the violators.

In the present case, the high court was hearing a plea filed by three women Vimla Govind Chorotiya, Neeta Santosh Kalshekar and Bani Vishwajit Debnath, whose husbands lost their lives while cleaning a septic tank in a private housing society in Govandi on 23 December 2019.

The Counsel for state submitted that in addition to compensation, the state government was further willing to rehabilitate the petitioners in accordance with Section 13 of the Prohibition of Employment of Manual Scavengers Act, 2013 by providing their children scholarships.

In addition, the high court passed the following directions:

  • The state of Maharashtra should give information to the Court with respect to the persons who died in Maharashtra as Manual Scavengers from the year 1993.
  • The State of Maharashtra should also inform the Court as to how many Manual Scavengers have been identified in the State and whether any compensation has been given to their families.
  • The state of Maharashtra shall inform the Court whether a survey is conducted of Manual Scavengers in the Urban areas in terms of Section 11 and Section 12 of the Prohibition of Employment as Manual Scavengers act 2013, and their Rehabilitation.

The court further stated that it would monitor the case to ensure that all the provisions of the Prohibition of Employment of Manual Scavengers Act, 2013 are implemented. The matter is posted for further hearing on 18 October 2021.

J&K HC: All Hindus living in Kashmir Valley cannot claim benefits meant for Kashmiri Pandits

In the case of Rajeshwar Singh & Ors Vs. Union of India & Ors., the J&K high court held that all Hindus residing in the Valley cannot be said to be a Kashmiri Pandit, thereby allowing them to avail the benefits of the schemes meant exclusively for the Pandits. 

In 2009, the Government of India issued Prime Minister’s Package for return and rehabilitation to Kashmiri migrants in Kashmir Valley. Subsequently, a survey was conducted with respect to the plight of Kashmiri Hindus who stayed in the valley and did not migrate in the wake of the law-and-order situation in the 1990s. It was based on an aforesaid survey conducted with respect to the living conditions of the non-migrant Hindu community of Kashmir, the said package was later extended to all non-migrant Kashmiri Pandits and Hindus as well. 

In December 2020, the State issued an advertisement for filling up 1997 posts in a recruitment drive. The advertisement was also open for the Kashmiri Pandits who had not migrated. However, people were required to produce bonafide documents certifying that such candidates had not migrated and were, accordingly, not registered with the Commissioner (Relief).

The Deputy Commissioners were also to certify such candidates, seeking the benefit of special recruitment drive carried under Prime Minister’s package, belonged to the community described as “Kashmiri Pandits”. The Deputy Commissioners chose not to grant such certificates to a group of non-migrant Kashmiri Hindus, on the analogy that they did not belong to the community of “Kashmiri Pandits.”

In the present case, the Counsel for petitioners argued that the benefit of the Prime Minister’s Package cannot be restricted to only one community, i.e., “Kashmiri Pandits,” and ignoring other Hindu castes, communities, and clans who have similarly suffered due to the onslaught in 1990. It was further argued that the term “Kashmiri Pandits” is wide enough to include all non-migrant castes and communities of Hindus residing in the Valley and have similarly suffered as non-migrant Kashmiri Pandits.

To this, the Assistant Solicitor General of India and Counsel for Government opposed the petition emphasising that Rule 2 of the Jammu & Kashmir Migrants (Special Drive) Recruitment Rules, 2009, entitles the following category of people as eligible for the said posts:

  1. A person who has migrated from Kashmir Valley after 01 November 1989 and is registered as such with the Relief Commissioner
  2. A person who has migrated from Kashmir Valley after 01 November 1989, but has not been so registered with the Relief Commissioner on certain grounds
  3. An internally displaced person who has migrated within Valley from his original place of residence in Kashmir Valley for security reasons and is registered as such with the Relief and Rehabilitation Commissioner, Migrants; and
  4. A person who belongs to the Kashmiri Pandit Family and has not migrated from Kashmir Valley after 01 November 1989 and is presently residing in the Kashmir Valley.

Given the above classification, for Category, I, II and III, the Relief and Rehabilitation Commissioner for Migrants is the designated authority for authentication of the migrant status of the applicants. For Category IV, the Deputy Commissioner is the designated authority for authentication of the applicant’s status through the issue of the certificate.

The Counsel for Government clarified that there was no separate quota within the quota available for any migrant or non-migrant community regarding these posts. Justifying the rejection given by the Deputy Commission to a group of Kashmiri Hindus, they argued that the petitioners who are neither migrants falling in categories I, II and III nor do they belong to the Kashmiri Pandit family are not eligible to participate in the selection process.

Therefore, they submitted that in the absence of challenge to the Recruitment Rules of 2009 by the petitioners, the full effect to the rules is required to be given. They also brought to light a 2019 judgment of the Jammu & Kashmir High Court, where the Sikh community living in the Valley was denied consideration for 500 posts earmarked for non-migrant Kashmiri Pandits residing in Kashmir Valley.

After considering all submissions, the high court held that the petitioner’s argument cannot be accepted in the face of the clear language of the relevant rule. The high court also highlighted that that the petitioners have not challenged the amendments to the Rules of 2009 that provide the category of non-migrant Kashmiri Pandits for a revised package of Prime Minister for employment and rehabilitation.

In the absence of such challenge, the high court held that the, who are, admittedly, not Kashmiri Pandits but belong to different castes of Hindus, cannot be brought within the definition of “Kashmiri Pandits.” Applying the common parlance principle, the Court defined Kashmiri Pandit as members of a Kashmiri Brahmin community living in the Valley for generations and are distinctly identified by their dress, customs, traditions, etc. It was held to be a separately identifiable community distinct from other Hindus residing in the Valley like Rajputs, Brahmins other than Kashmiri Pandits, Scheduled Castes, Scheduled Tribes, and many others.

Supreme Court: Summoning and detaining a person without any registered crime is illegal.

In the case of M.A Khaliq Vs. Ashok Kumar, the Supreme Court held that summoning and detaining a person without there being any crime registered against them would be violative of basic principles.

The apex court was hearing the case of a man, whose wife had filed a complaint alleging offences under Section 498A of the Indian Penal Code. The man approached the Andhra Pradesh High Court seeking a direction not to arrest him without giving due notice under Section 41A of the Code of Criminal Procedure. The high court thus directed the police to strictly follow the guidelines laid down by the Supreme Court in Arnesh Kumar Vs. State of Bihar.

In Arnesh Kumar Vs. State of Bihar case, the SC issued the following directions:

  • All the State Government should instruct its police officers not to automatically arrest a person when an offence under section 498-A of the Indian Penal Code is registered. The necessity of arrest arises when the case falls under the parameter of Section 41 of the Code of Criminal Procedure.
  • All police officers are provided with the checklist containing specified clauses under Section 41 (1) (b) (ii). The police officer shall forward the checklist duly filed and furnished with the reason and material necessitated the arrest while producing the accused before the magistrate for further detention.
  • The magistrate while authorizing the order of further detention shall rely upon the report furnished by the police officer and only after recording the reason duly furnished on the Police report and on the satisfaction, the Magistrate will authorize further detention.
  • Notice of Appearance in terms of Section 41-A of the Code of Criminal Procedure be served upon the accused within two weeks from the date of institution of the case which may be extended by the Superintendent of Police after recording the reason in writing.
  • Failure to comply with the directions mentioned above shall be rendered the police officer liable to be punished for contempt of court before the High Court having jurisdiction.
  • Authorizing detention by the Judicial Magistrate without recording the reason, the concerned Judicial Magistrate shall be liable for Departmental Proceedings by the High Court.

He filed a Contempt Case alleging that despite the SC order, he was forcibly taken away by the police officer to Akividu police station in the name of counselling and detained. The high court held that the police officer is guilty of contempt of court and sentenced him to three months imprisonment.

After considering all submissions, the Supreme Court observed that the matter represents a violation of the directions issued by the SC not only in Arnesh Kumar vs. the State of Bihar but also in the case in D.K. Basu v. State of West Bengal. Both the cases lay down clear directions for the police for permissible and impermissible conditions of the arrest.

In conclusion, the apex court restored and modified the high court order by reducing the sentence of the police officer from three months to 15 days.

Delhi HC: Directs Delhi Labour Dept to ensure uploading orders passed by Employee Compensation Commissioners

In the case Ms Kamla Bhel Co. Pvt. Ltd. Vs. Smt. Sunita Mehta & Ors., the Delhi high court directed the Labour Department of the Delhi Government to ensure that orders passed by the Employee Compensation Commissioners are uploaded within a period of 3-4 working days on the portal of the Labour Department. 

The Court was hearing a plea filed by a company alleging that it was never served with the order in the proceedings before the Commissioner, Employees Compensation, New Delhi.

In this regard, the Additional Labour Commissioner of the Delhi Government filed an affidavit submitting that it had issued an order directing all the Commissioner Employee’s Compensation to send the soft copy of the order to the System Analyst for uploading the same on the website of Labour Department.

The high court noted that although steps were taken for uploading orders within three to four days, the same was not fulfilled. The high court emphasised that uploading of orders is essential to ensure that litigants and lawyers are able to view and obtain orders without any inconvenience.

In conclusion, the high court directed that the Department ensure that the orders passed by the Employee Compensation Commissioners are uploaded within three to four working days on the portal of the Labour Department. The high court emphasised that non-compliance in this regard would be dealt with strictly. The matter has been posted for further hearing in December. 

Featured Image: Important Court Judgements

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