Case summaries (27th September – 3rd October)

By Sarika Agarwal, SY BA LLB

POSH Act: Guidelines issued to protect identities of parties involved

(P v. A & Ors)

On 27th September 2021, the Bombay High Court has released a set of guidelines to be followed in cases involving Sexual Harassment of Women at the Workplace. The rules deal with the format of filing cases under the POSH Act, conducting hearings, access of the public to the proceedings, and directions to the certified copy department. The key takeaways from the guidelines are as follows:

  • Names of the parties will not be disclosed in the order sheet. The cases must be referred to as A v. B, P v. D.
  • There shall be no mention of any Personally Identifiable Information (PII) such as phone numbers, email ids, addresses, etc.
  • The documentation of all such cases will be kept confidential. It shall also not be uploaded on any official High Court website.
  • All judgments must be delivered in private, i.e., no orders can be passed in an open court.
  • Media houses are also banned from reporting any proceedings and judgments unless permission is given.
  • Only anonymized versions of any judgment or order can be published for public access.
  • Failure to abide by the confidentiality guidelines may result in contempt of court.

Justice Patel also stated that since there are no established guidelines, the introduced guidelines were a “minimum requirement” and are subject to modifications or revisions as and when required.

Breastfeeding a child is an essential attribute of motherhood and is protected under Article 21

The Karnataka High Court on 29th September 2021 stated that breastfeeding needs to be recognised as an inalienable right of the lactating mother under Article 21 of the Indian constitution; similarly, the right of the suckling infant for being breastfed too, has to be assimilated with the mother’s right; arguably, it is a case of concurrent rights; this critical attribute of motherhood is protected under the umbrella of Fundamental Rights guaranteed under Article 21 of the Constitution of India. The court made this observation in a case where the biological mother of a child, who was stolen after birth from the maternity home, had approached the court seeking the child’s return from the foster mother. The said order also stated that the claim of the genetic mother should be given a priority over the foster mother, subject to all just exceptions, into which the case of the foster mother is not shown to fall; this augur well with reason with the law and with justice. The court also noted that it is impossible to apply thumb rules in cases like these as the subject matter involved is very complex. The advocate for the foster mother argued that since his client does not bear any child of her own, the custody of the child in the case should remain with her only. However, the court disregarded the argument, stating that children cannot be used as chattel to be apportioned between their genetic mother and a stranger, based on their numerical abundance.

Allahabad High Court Dismisses CBI’s plea to cancel Bail of Accused: Unnao Rape Case.

In June 2017, a 17-year-old girl was kidnapped and raped by BJP MLA Kuldeep Singh Senger and his brother. The accused, Shubham Singh, Brajesh Yadav, and Naresh Tiwari, alias Awadhesh Tiwari, were granted bail by Allahabad High court on different dates in 2017 March, 2018, and in April 2018, after which CBI filed an application for cancellation of the bail. The High court had asked CBI to consider whether cancellation of bail of the accused was required for carrying out a free and fair investigation. During the proceedings, the court observed no material support or facts of the application filed by the CBI supporting the cancellation of bail. It also noted that CBI should not engage in filing such applications bereft of any cogent material for examination before the Court as it adds to the burden of the Judicial system.

The investigation on this matter has been closed, and a charge sheet has also been filed.

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