Recent Updates

I. Supreme Court directs Child Welfare Committees (CWCs) to complete inquiry on orphans within 3 weeks.

It has been reported that more than one lakh children have lost either one or both parents struggling during COVID-19. The survival of such children is at stake. This observation has been made by the division bench comprising Justice Nageswara Rao and Justice Aniruddha Bose. This bench directed the Child Welfare Committees of all states to complete inquiries as per the Juvenile Justice Act within three weeks, the report for which has to be filed within four weeks. The children who are not in a need of such assistance (financial) also needs to be identified simultaneously. Such children would not be provided with assistance and only those children in need would be provided so.

Article 21A entailing free and compulsory education for all children of the age groups 6-14 years would be provided so, by the State along with the basic enmities.

The States and Union Territories have been directed with the following:

  • Report the number of children who have lost one parent or become orphans since March 2020.
  • Number of children reported and brought forward CWC.
  • Report the children who have received benefits in this regard from the States.
  • Information regarding payment of Rs. 2000 to the needy children under ICPS scheme

On May 28, the Union and the States were directed to upload the data of orphan children on “Bal Swaraj” portal, the illegal adopted of such orphans has been directed to be taken care of, by the bench.

II. Centre directs the Supreme Court to constitute a committee to optimize Case Management System within 3 months.

The Centre has made remarkable progress in adopting technology in order to streamline monitor and integrate government litigation. It has been previously reported by the bench consisting of Justice D.Y. Chandrachud and Justice M.R. Shah that there has been a gross delay in the settlement of revenue matters. The officers previously reported delay and ignorance on the part of Supreme Court. A committee, in compliance with the Ministry of Finance, Department of Revenue has been constituted that will finalize and operationalize a suitable system within 3 months for effective case management by the government. It consists of various representatives from law, economics and finance department. The bench has also directed the Secretary of the Department of Revenue to regularly monitor the progress made by the committee and provide technical assistance and knowledge, as and when required. This step has been possible because of the GST bifurcation under List I, II and III.

It will enable a more business-friendly adjudicatory framework. It will be the government’s message to businesses that it only wants tax dues to be paid and not harassing assesses through revenue officials.” quoted by Justice Chandrachud.

Earlier, the bench had noted the collaboration of National Informatics Centre (NIC) with the Ministry of Finance to bring litigation data in the ambit of LIMBS platform (Legal Information Management and Briefing System).

III. WhatsApp’s plea challenging traceability clause under IT Rules, 2021: Delhi HC.

Case Name: WhatsApp LLC v. Union of India

The Delhi High Court has filed a plea, challenging the traceability clause under Rule 4(2) of the Information Technology Act, 2021, as violative of the right of privacy which was enshrined under KS Puttuswamy v. Union of India. [1] The bench comprising Chief Justice DN Patel and Justice Jyoti Singh has scheduled hearing of the matter on 22nd October. The above clause will put professionals at risk including journalists who could be at the risk of retaliation for investigating unpopular issues or for criticizing politicians and policies who could be reluctant to share confidential information. This would encourage the breakage of end- to- end encryption on its messaging service and defeat the opportunity to identify the originator of the message.

This law does not pass-through Article 21 and is arbitrary of Art 14, 19 along with sec 79 and 69 (A) of the IT Act.

IV. Formulation of rules to curb Lawyer’s strikes and Court’s Boycotts.

Case name: District Bar Association Dehradun v. Ishwar Shandilya & Ors.

The Bar Council of India has informed the Supreme Court that it is proposing to frame rules to curb lawyers’ strikes and court’s boycott and take reasonable action against those who promote such strikes through social media. Appropriate punishment will be granted to the members of bar association who go on strike without proper justification. This decision has been bought forth by Advocate Manan Kumar Mishra, who is the chairman of BCI.

V. Establishment of new courts in States where more than 100 cases are pending.

Taking into account the long pendency of criminal cases against sitting and former MPs/MLAs, Supreme Court has directed the establishment of more CBI/ Special Courts to deal with such matters.

It has been pointed out that States like Madhya Pradesh are in need of such courts to prevent travesty of justice. This has highlighted by the bench consisting of CJI NV Ramana, Justice DY Chandrachud and Justice Surya Kant. It would not be possible for one/two courts in a state to expedite such matters in terms of Sec 309 of CrPC, therefore, establishment of multiple courts in a state has been recommended. The states have been directed to provide necessary infrastructural base to facilitate the establishment of additional CBI/ Special Courts, as and when required. This direction was issued while hearing the matter of Ashwini Kumar Upadhyaya v.

Union of India. The bench commented that there should be continuous judicial supervision, vigilance and monitoring by the High Courts. High Courts have the responsibility to setup adequate courts and meticulously follow the guidelines issued by the top-courts.

As per the CBI report, India has 121 pending cases against MPs/ Ex- MLAs along with 112 actual cases. 37 are still at investigation stage with the oldest pending case being registered in 2013. Data reveals that in certain cases, chargesheet has been filed but appearance of the accused, framing of charges or prosecution in still pending. The establishment of new courts will be taken charge of, by the CBI. The Apex court highlighted the ignorance and delay which can be seen on the part of investigative agencies like CBI, ED and NIA which needs to be urgently addressed.

VI. Appointment of nine Supreme Court Judges including 3 women.

As per the recommendations of the Supreme Court collegium, President has approved the appointment of the following judges:

Mr. Justice A.S. Oka, Chief Justice, Karnataka High Court

Mr. Justice Vikram Nath, Chief Justice, Gujarat High Court

Mr.   Justice   J.K.   Maheshwari,   Chief Justice, Sikkim High Court

Ms. Justice Hima Kohli, Chief Justice, Telangana High Court

Mrs. Justice B.V. Nagarathna, Judge, Karnataka High Court

Mr.   Justice   C.T.   Ravikumar,    Judge, Kerala High Court

Mr.   Justice    M.M.    Sundresh,    Judge, Madras High Court

Ms. Bela Trivedi, Judge, Gujarat High Court

Mr. P.S. Narasimha, Senior Advocate

As per seniority, Justice BV Nagarathna is all set to become the first woman Chief Justice of India in 2027. The appointment of new judges has been made after nearly two years, in the Supreme Court. Now, the strength of court will be 33 with one vacancy.

VII. Permission of District Magistrate not needed for conversion by inter-faith marriage.

As per a recent report, Gujarat High Court has refused to rectify its previous order staying Section 5 of the Gujarat Freedom of Religion Act stating that they do not find any problematic content in the order.

The bench comprising of Chief Justice Vikram Nath and Justice Biren Vaishnav, it was argued that Section 5 of the Act is not concerned with marriage per se. It is only related to seeking permission of the District Magistrate, by a person who wishes for his religion to be converted and therefore, it must not be nullified/changed.

If somebody wants to get married (inter- religious), the presumption is that it is unlawful unless permission is taken under Section 5. Since the Court has stayed Section 5 only in relation to marriage to marriage solemnized between consenting adults, the provision will not be deemed to be stayed for individual conversions.”

Now, marriage comes under the ambit of Section 3, so permission under Section 5 would also be required for the same. Section 5 has been stayed with respect to marriages only and not as a whole. The court concluded by saying that they do not find any reason to make any changes in the order passed.

VIII. Commencement of physical hearings by Supreme Court with hybrid mode option from September 1.

As per a recently published notification by the Supreme Court, lawyers have the option to choose between physical mode and video/tele-conferencing mode to carry out the proceedings. The court will commence physical hearing in hybrid option from September 1, 2021. The Secretary General of the Court has published a Standard Operating Procedure (SOP) for the same. The physical hearings will be limited to final/regular hearings on non- miscellaneous days i.e. Tuesdays, Wednesdays and Thursdays for the time being. The advocates have been advised to submit their preferences within 24 hours next day after publication of the weekly list of the final hearing/ regular matters. If physical hearing has been opted by the advocate, video/ tele- conferencing hearing will not be facilitated.

IX. Bombay High Court dismisses plea which alleged ex Maharashtra CM Devendra Fadnavis used Pegasus to obtain courts documents.

The Nagpur Bench of Bombay High Court dismissed a petition filed by a Nagpur Lawyer seeking investigation into his complaint that former Chief Minister of Maharashtra Devendra Fadnavis was associated of using the software developed by Israel Company: Pegasus.

Case Name: Satish Uke v. State of Maharashtra & Ors.

A complaint was filed by the petitioner against Fadnavis alleging that he had stolen digital copies of a criminal writ petition from his mobile phone using Pegasus software. These applications were used for filing an intervention application by the associates. The Bench comprising of VM Deshpande and Amit B. Borkar suggested lack of need to hold the existing complaint by the petitioner and noted that the petitioner had sought reliefs against the respondents for the same incident.

X. Balasubramanian v. M. Arockiasamy (D) through LRS- Injunction granted in a matter of property dispute. [2]

S.A. Boppana, and Hrishikesh Roy heard and decided a matter put forth which involved applicability of Section 100 of the CPC, for which they upheld the judgment of the Madras High Court. The appeal was filed against a judgment delivered by the Madras HC seeking perpetual injuction to forbid the other party from disallowing him to enjoy the property he had been paying “kist” for since the past four decades. After filing a first appeal under Section 96 of the CPC, the defendant filed a second appeal, during the proceedings of which a substantial of law was examined by the HC- “whether the suit without the prayer for declaration is maintainable when especially the title of the plaintiff is disputed.” The High Court observed the contentions of the parties and came to a conclusion stating that the question of law did carry substance, thus setting aside the judgment of the first appellate court. Unhappy with this decision, the now plaintiff went on to carry the case to the Apex Court, using Section 100 to assert that the High Court had gone beyond its judicial limits to decide the case, and that it should not have interfered with the reappreciation of evidence which had already been taken care of by the first appellant court.

Lastly, the Apex Court found “the findings by the trial court and the first appellate court were divergent. The trial court concluded that the kist receipts would not establish plaintiff’s possession, whereas the first appellate court in fact placed    heavy    reliance    solely    on the kist receipts.”

The Supreme Court declared the plaintiff’s possession of the suit property to be unestablished, and that the first appellate court misguided itself. In the end, the Supreme Court found the judgment of the High Court to be in consonance with the factual situation of the matter, resulting in dismissal of the appeal.

XI. Sanjay Ramdas Patil v. Sanjay & Ors.- Judgment delivered by Aurangabad Bench of Bombay HC set aside by the Supreme Court over violation of Policy of Rotation:- [3]

The Apex Court recently commented on the possibility of repetition of reservations in OBC category for the Mayor’s post, specifically for the Dhule Corporation, due to the large number of municipal corporations in the state of Maharashtra, which cannot be said to be violative of the rotation policy as prescribed the laws in Maharashtra. Here, Article 243T of the Constitution was referred by Justices L Nageswara Rao and BR Gavai, which encapsulates stipulations of reservation of seats in municipal bodies. Along with this Article, Section 19 of the Maharashtra Municipal Corporations Act, 1949 and Rule 3 of the Maharashtra Municipal Corporations (Reservation of Offices of Mayors) Rule, 2006.

The Court found that the High Court’s reasoning of a corporation not being able to have same reservation twice till the time all categories have been allotted was unjustified. It was advised that the Court must choose an interpretation that makes a statute efficient, and not kill the reason behind its enactment.

XII. Delhi High Court allows Indian couple living in US to register marriage in Delhi through digital medium.

The couple had sought a direction to the Sub-Divisional Magistrate (SDM) concerned in New Delhi to register their marriage in accordance with the provisions of the Delhi (Compulsory Registration of Marriage) Order, 2014 without insisting on their physical appearance before him.

The Court held that the term “personal appearance” in Clause 4 of the Registration Order had to be read to include presence secured through video- conference.

“Any other interpretation, would not only frustrate the very purpose of this beneficial legislation, but it would also undermine the use of this important and easily accessible tool of video conferencing,” it pointed out. The Court, therefore, endorsed use of video conference to register the marriage of an Indian couple living in the US, seeking registration of their marriage in Delhi.

XIII. Kerala High Court senior advocate designation rules challenged before Supreme Court.

Kerala based lawyer, Sohan KV has approached the Supreme Court challenging the High Court of Kerala (Designation of Senior Advocates) Rules, 2018 which govern designation of Senior Advocates in the Kerala High Court. The plea, which has been filed as an application in the Indira Jaising case, said that the Rules run contrary to the judgment of top court with respect to the number of votes a candidate should get at the full court meeting for him/ her to be designated.

As per the judgment, a simple majority is sufficient but the Kerala High Court Rules mandate two-third majority, the plea drawn by advocate Bijo Mathew Joy and filed through advocate Seshatalpa Sai Bandaru said.

XIV. Centre clears appointment of six judicial members to Armed Forces Tribunal.

These appointments have been made after the top court came down heavily on Centre for delay in filling up the vacancies. A three-judge Bench headed by Chief Justice of India NV Ramana had on September 6, pulled up the Government for its inaction in filling up vacancies in tribunals and also berated it for enacting the Tribunals Reforms Act, 2021 in violation of its judgments. The six members appointed are:

  • Justice Bala Krishna Narayana;
  • Justice Shashi Kant Gupta;
  • Justice Rajiv Narain Raina;
  • Justice K Harilal;
  • Justice Dharam Chand Chaudhary;
  • Justice Anjana Mishra

In line with the Tribunal Reforms Act, 2021, this appointment is for a period of four years, or till the members attain the age of 67 years, whichever is earlier.

XV. Centre issues guidelines for COVID Death Certificates following Supreme Court’s Directions. [4]

The directions were issued by a bench comprising Justices Ashok Bhushan and MR Shah in the judgment delivered on June 30 in the cases Gaurav Kumar Bansal vs Union of India and Reepak Kansal vs Union of India and Others. The bench had made it clear that a death certificate issued in respect of a COVID fatality must clearly specify the cause of death as COVID itself. Also, if a person has died due to any other complications or disease due to COVID, then also the death certificate should specifically mention the cause of death as COVID. Government of India has told the Supreme Court that it has framed guidelines to simplify the process of the issuance of COVID-19 death certificate in compliance with the directions in the judgment passed on June 30. These guidelines specify:

  • What are COVID-19 cases?
  • What will not be considered as COVID deaths?
  • COVID deaths.
  • Procedure for redressal of grievances regarding death certificates.
XVI. Plea to declare virtual court hearing as Fundamental Right: Supreme Court issues notice to BCI, SCBA & 4 HCs. [5]

The Supreme Court on 6th September issued notice to the Bar Council of India, Supreme Court Bar Association and four High Courts on a writ petition seeking a declaration that virtual court hearing is a fundamental right which sought for the retention of the hybrid options for physical and virtual hearings in courts saying that it enhanced the right to access justice.

The High Courts of Uttarakhand, Bombay, Madhya Pradesh and Kerala are arrayed as respondents in the petition. The bench also impleaded the BCI and the SCBA, observing that it wanted to know their views on the matter. The petition was filed by an organization of lawyers called “All India Association of Jurists” and legal reporter Sparsh Upadhyay, challenging the recent decision of the Uttarakhand High Court to revert to complete physical hearings, without hybrid option.

XVII. Centre’s decision to allow early administration of Covishield vaccine before 84 days to some classes of people discriminatory.

The Kerala High Court allowed the petition filed by two companies seeking to administer the second dose of ‘Covishield’ vaccine to its workers before completion of the 84 day-gap. Justice P.B. Suresh Kumar directed the Department of Health and Family Welfare to make necessary provisions forthwith in the CoWIN portal, so as to enable scheduling of 2nd dose of the Covishield vaccine after 4 weeks of the first dose.

The Court had earlier inquired if this gap was necessary and if it was related to the efficacy of the vaccine, or if it was extended due to the non-availability of the vaccines in the country. To this, the respondent had replied that the prescribed 84 days between two doses of Covishield vaccine was based on a technical opinion recommended by the National Expert Group on Vaccine Administration for COVID-19 (NEGVAC) for better protection from the Covid-19 virus.

The Court noted that in the statement filed by the Centre, it was admitted that the immunity provided by the second dose of Covishield vaccine with a time interval of less than 12-16 weeks would be better than partial vaccination, namely single dose. The Court noted that vaccination was made voluntary and not mandatory in the country considering one’s right of bodily autonomy. In that context, the Bench observed that the requirement to administer two doses of the vaccine and the interval between the two doses for better protection from infection can only be considered as advisory.

It was further observed by the Court that if the Government can permit persons intending to travel abroad to exercise a choice between early protection and better protection from Covid- 19 infection, there is absolutely no reason why the same privilege shall not be extended to others who want early protection in connection with their employment, education, etc.

XVIII. Amazon- Future Dispute: Supreme Court stays enforcement proceedings in Delhi High Court [6]

The Supreme Court on Thursday stayed the proceedings instituted by global e- commerce giant Amazon for the enforcement of the Emergency Award passed in its favor by a Singapore-based arbitrator which halted the merger deal between Future Retail Limited and Reliance group. The Court also asked all authorities including the NCLAT, CCI and the SEBI to not pass final orders for four weeks in relation to the Future- Reliance deal.

The bench stated that it was passing the order taking into consideration the fact that the Future group has approached the Singapore International Arbitration Centre to vacate the interim order passed by the Emergency Arbitrator and arguments have been concluded in that.

XIX. NEET- PG 2021: Supreme Court dismisses plea for option to change exam center. [7]

The Supreme Court on Thursday dismissed a writ petition filed by doctors seeking directions to allow change of exam center option and to postpone the conduct of NEET PG 2021 till National Board of Examination allows such option.

3 bench of Justices UU Lalit, S Ravindra Bhat and Bela M Trivedi dismissed the petition after observing that the COVID situation is improving in the country and there are few travel restrictions in force.

XX. Centre will introduce new law on mediation: Law Minister Kiren Rijiju.

Government is set to introduce a new bill on mediation in the upcoming winter session of the parliament, Union Law Minister Kiren Rijiju said on 12th September, with the government aiming to make India an “arbitration hub”.

XXI. Danane Shweta Sunil and Ors v. Union of India.

The division bench of Justices Nagarathna and DY Chnadrachud while hearing a miscellaneous application in relation to management of funds for children, recognised the parental loss of children in the state. The state of Maharashtra had planned a budget of Rs.25 crores to spend for the welfare of children who had lost their parents due to the Covid-19 pandemic. [8] The counsel appearing for the state stated the figures of children had aptly been added to the website of National Commission for Protection of Child Rights (NCPCR) under the Bal Sangopan Yojana. While the court recognised the efforts of the state to aid the children, it also called for verification of aforesaid data and asked for a clear statement laying out the clear plans of allocating the money to the children. Only then would the court disburse the money that was lying in the registry and asked the secretary, Women and Child Development of the State of Maharashtra to file an affidavit consisting of a solid “concrete plan” within three weeks.

XXII. Jarnail Singh v. Lachhmi Narain Gupta and other connected matters, SLP(c) No.30621/2011.

While hearing a total of 133 petitions together, the apex court has set to clear the doubts and loopholes in relation to reservation in promotion.

In the case of M.Nagaraj vs. Union of India in 2006, [9] it was held that quantifiable data was necessary to clearly show that “backwardness” of the people in the SC/ST community in order for them to get a reservation seat in case of a promotion. This part of the judgment was overruled in 2018 by a five-judge bench and the apex court has now decided not to reconsider the issues that have already been discussed and settled in relation to the Nagraj case. [10]

Senior Advocate, Indra Jaising highlighted how the high courts were framing orders in interference to state guidelines in relation to reservation and while some courts allow for reservation, one court has issued polar opposite orders calling for status quo promotion. With conflicting high court judgements, the court recognised that states need immediate attention in relation to cases pertaining to reservation in promotion. Many jobs were lying vacant due to this unresolved issue. While the court clearly stated that there is no need to reopen interpretation of article 16(4) [11] of the constitution that deals with provision of reservation for the backward class, the court called for respective states to identify the issues they had with reservation policy and to present them to the court.

XXIII. Justice(Retired) Ashok Iqbal Singh Cheema v. Union of India | WP(c) No.1027/2021.

The Supreme Court goes into details of the Tribunal Reforms Act, 2021 which has become a source of contention between the union government and the court. The aggrieved party Justice (Retired) Ashok Iqbal Singh Cheema had sought redressal for his retirement as acting chairperson of the National Company Law Appellate Tribunal, which was done prematurely by the central government. The government had already appointed another person as the acting chairperson and the bench has stated that this sudden retirement can cause an “awkward” situation wherein Mr. Cheema has reserved judgment in multiple cases, and for that he needed to exercise his powers as the acting chairperson.

The attorney general K.K. Venugopal later acknowledged the issues posed by the bench and agreed to reinstate Mr. Cheema as the acting chairperson till his retirement day on 20th September. The court had circumvented around the violation of the independence of the judiciary across the country by the intervention of a government order to reduce the tenure of a chairperson. While his appointment was done under the Tribunal Reforms Act,2017 the newly amended Tribunal Reforms Act,2021 lays out a tenure of 4 years for the chairperson and other members. [12] Certain provisions of the Tribunal Ordinance were already struck down by the Supreme court earlier and currently there is a plea before the court, challenging the constitutional validity of the Tribunal Reforms Act, 2021.

XXIV. Rasoolshan A v. The Additional Chief Secretary & Ors.

The Kerala government had recently announced that grade 11 exams were to be held offline in the state. The petition was challenging the order on the grounds that the safety of students was at risk considering the increase in Covid-19 cases in the state. The bench found the petitioners arguments unsatisfactory and stated that they were satisfied with the response of the state in relation to taking appropriate safety measures. [13] While the apex court had earlier allowed for the stay of examination on a judge delivered on September 3rd, the current bench recognised that the data in relation to the third wave of the pandemic has altered and it would not occur in September. The bench recognised that several examinations including lakhs of students were held successfully following protocol and that it was imperative to conduct grade 11 exams and the mark is carried forward to 12th grade.

XXV. George Mangalapilly vs. State of Madhya Pradesh LL 2021 SC 473.

The Supreme Court quashed criminal case against a man, George Mangalapilly who was accused of forcibly converting a person, Dharmendar Dohar to Christianity. The testimony of the witness in this case was that he had not been forcibly converted by the accused nor had he been in contact with him. [14] He was charged under Sections 3 and 4 of the M.P. Freedom of Religion Act, 1968. However, the court in this case with regards to the facts and circumstances of the case, placed importance on the testimony of the man who was said to be forcibly converted. However, the witness himself had stated that he had not filed any report against the accused that in these “peculiar circumstances” the accused is allowed relief and the proceedings charging him under S 3 and 4 of the M.P. Freedom of Religion Act is quashed.

XXVI. Ranjit Rajbanshi vs The state of West Bengal and others. [15]

The perpetrator in this instance was 22 years old, while the victim was 16 and a half years old. The Trial Court found the defendant guilty under Section 376(1) of the Indian Penal Code and Section 4 of the POCSO Act. The accused emphasized in his appeal to the High Court that the victim had confessed her previous relationship with him. The state argued that the victim was a minor at the time of the crime, and that even if the child had agreed to the crime, it made no difference.

The court interpreted that while interpreting the term “child” appropriately, the age, maturity, and other factors become essential in deciding whether or not a case of penetrative sexual assault should be pursued. According to the definition of “child” under Section 2(d) of the Act, even a person who is 17 years and 364 days old would qualify as a child, but her maturity would be no different from that of another person who was only one day older than her, that is, 18 years old, the Court stated. The court further mentioned that “The expression ‘penetration’ as envisaged in the POCSO Act has to be taken to mean a positive, unilateral act on the part of the accused.” The court stated that based on the facts presented, no unilateral forced act of penetration on the part of the accused was proven in this case. In the present case, however, a prior relationship between the two fairly adult individuals has been accepted, leading to the claimed event, it stated. The court also noted that the lawsuit was filed four days later as a result of the victim’s reluctance to marry him. Although the issue of consent does not arise in the case of a juvenile, it must be proven that the alleged offence was committed against the victim’s will in order to be prosecuted under Section 376(1) of the IPC. When read together, Section 376 of the IPC and Section 3 of the POCSO Act should be understood similarly, and the accused should not be held accountable for a consensual mutual act of sexual union. “If the union is participatory in nature, there is no reason to indict only the male just because of the peculiar nature of anatomy of the sexual organ of different genders, Justice Sabyasachi Bhattacharyya observed.”

According to the Court, the victim’s psychology, maturity, and past behaviour in relation to the accused are also important in convicting a person for penetrative sexual assault. It went on to say that the POCSO Act’s provisions should be given a proper interpretation in order to safeguard children and not be used as an instrument of abuse to force someone to marry someone else. The Court further noted that both the accused and the victim are currently married to strangers unrelated to the case. Additionally, as a result, the Court should exercise extreme caution in imposing a stigma on either the accused or the victim.

XXVII. Youth Bar Association vs Union of India. [16]

Last Monday, the Rajasthan State Assembly passed the Rajasthan Compulsory Registration of Marriages (Amendment) Bill 2021 to modify a 2009 Act [Rajasthan Compulsory Registration of Marriages Act], which requires marriages, including child marriages, to be registered. Parties must submit a Memorandum for Registration of Marriage to the Registrar within whose jurisdiction the marriage is solemnized, according to Section 8 of the 2009 Act. Until recently, the regulation stipulated that if the parties (bride or groom) were under the age of 21, their parents or guardians would have to submit the memorandum. However, if the amendment bill becomes law, it will be the responsibility of the bride’s or groom’s parents or guardians to submit the memorandum if the bride is under the age of 18 and/or the groom is under the age of 21.

In the Supreme Court, a Public Interest Litigation (PIL) petition has been filed by Youth Bar Association of India contesting the constitutional validity of Section 8 of the aforementioned Bill inasmuch as it allows for the registration of child marriages. It was also claimed that, while the petitioner is not opposed to marriage registration in general, allowing the registration of “child marriages” would create a “threatening condition” and may promote child abuse. “Our country is a ‘welfare state’ and the Governments owes an obligation to work for the welfare of the nation. Children must be the paramount consideration, who happens to be the resources of a developing nation”, it was further argued.

According to the appeal, the Rajasthan Government aims to enable child marriage by providing it a back door access, which is otherwise illegal and inadmissible under law, as stated in the Statement of Objects and Reasons for changing Section 8. In addition, the petition claimed that Section 8 of the Bill “protects the solemnization of the marriages of minors who have not reached marriageable age.” It was also claimed that such a Bill would undermine the objective of the 2006 “Prohibition of Child Marriage Act,” which was designed to prevent such marriages.

The appeal argued that marriage registration would fall under the definition of “vital statics” in Schedule VII List III Entry 30 of the Constitution of India, raising questions on the legislative authority to pass such a Bill. As a result, the State Government lacks legislative authority over the crucial subject of mandatory marriage registration, according to the argument.

XXVIII. Jitendra Mann alias Gogoi murder in Rohini court.

After a horrifying incidence of gunfire in a courtroom in Delhi’s Rohini Court on Friday, where imprisoned criminal Jitendra Maan alias Gogoi was murdered, the security arrangements at the district courts have come into sharp attention. Two assailants of a rival gang who had attacked Gogoi and were acting as attorneys were also murdered when police fired shots in reprisal, according to media accounts. According to witnesses, the judge and court personnel were there when the horrible occurrence occurred. During the gunfire, images of litigants and attorneys running for safety have surfaced.

The current appeal is based on observed occurrences and data that demonstrate that the situation surrounding safety and security in Delhi’s district courts is handled considerably more carelessly than in the High Courts and Supreme Court. The Delhi High Court administration informed the High Court’s judicial side in September last year that there was an urgent need to increase police presence at the Rohini Court complex due to inadequate security precautions. The affidavit by the High Court Administration was filed in response to a Public Interest Litigation (PIL) filed by lawyer Kunwar Gangesh Singh in July 2019 seeking directions to improve the security systems of various district courts across Delhi in order to reduce the increasing number of shootouts reported in recent months. In the High Court, the petition is still undergoing adjudication. In addition, the petitioner stated that there is an imbalance in the ratio of police officers to the large number of visitors, creating a significant security concern. It was also claimed that district courts in Delhi had turned into a “playground” where defendants may interact freely with their peers and family members while in court. The petitioner further claimed that such frequent shootings and murders within courthouses not only make the public fearful of visiting the court to seek justice, but also have a negative impact on the judicial system’s functioning, resulting in an increase in the number of outstanding cases. A request had been made to the Delhi government for raising the number of CCTV cameras in the Rohini Court complex, which are ‘grossly insufficient,’ according to the affidavit submitted by Joint Registrar (Management & Co- Ordination Cell (Building Maintenance Committee, District Courts). The affidavit further said that “in addition to Delhi Police officers, 33 private security men and one supervisor have been engaged to further reinforce the security of the Court Complex.”

The Supreme Court has taken a suo motu case on to address the problem of judge and court security. [17]

The aforementioned incident makes it very clear that one just need to dress as a lawyer to enter the court room. In fact, in most of the district courts disguising as a lawyer is also not necessary to enter the court, any civilian can visit the court without undergoing any security check. The incident gives a reality check about the intensity of risk the lives of lawyers, judges, interns and other civilians possess inside a court. Such a kind of lacunae in the security system could one day lead to terrorist attack in courtroom.

There should be proper devices and functioning metal detectors in courts at all levels in order to keep a check on the weapons. There should also be a consideration of hearing the statements of dangerous or most wanted criminals virtually and not bringing them physically to court.

XXIX. POSH Act: Guidelines issued to protect identities of parties involved (P v. A & Ors).

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 and shall also be not uploaded on any official High Court website.
  • All judgements 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 judgements unless permission is given.
  • Only anonymised versions of any judgement 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 as of now, the introduced guidelines were a “minimum requirement” and are subject to modifications or revisions as and when required.

XXX. Breastfeeding a child [18] is an important 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 important 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 return of the child 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 not possible 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 a chattel for being apportioned between their genetic mother and a stranger, based on their numerical abundance.

[1] K.S. Puttaswamy (Privacy-9J.) v. Union of India, (2017) 10 SCC 1.

[2] Balasubramanian v. M. Arockiasamy, 2021 SCC OnLine SC 655.

[3] Sanjay Ramdas Patil v. Sanjay & Ors., (2021) SCC OnLine SC 650.

[4] Reepak Kansal vs Union of India and Ors, (2021) SCC OnLine SC 443.

[5] All India Association of Jurists vs. Uttaranchal High Court WP (C) No. 941 of 2021.

[6] NV Investment Holdings LLC vs Future Retail Limited and Ors, (2021) SCC OnLine SC 557.

[7] Poulami Mondal and Others vs All India Institute of Medical Sciences and Ors, (2021) SCC OnLine SC 424.

[8] Anonymous, Supreme Court Favours ₹ 25 Crore Funds For Maharashtra Covid Orphans, NDTV (Sept.20, 2021).

[9] Nagaraj & Ors v. Union of India & Ors, (2006) 8 SCC 212.

[10] Legal Correspondent, Quota for SCs, STs in job promotion | Don’t want to reopen order, says Supreme Court¸ The Hindu (Sept.20, 2021).

[11] INDIA CONST. art. 16, § 3.

[12] Kirti Meena, Sandli Pawar, India’s Tribunals Reforms Act: A Challenge to the Separation of Powers, Jurist (Sept.26, 2021).

[13] Legal Correspondent, SC not to intervene in Kerala’s plans to hold Plus One examinations offline, The Hindu (Sept.26, 2021).

[14] Jesse Jacob, India: Supreme Court Turns Down Forcible Conversion Case, The Law Reporters (Sept.27, 2021).

[15] Ranjit Rajbanshi v. State of West Bengal and Others, (2021) SCC OnLine Cal 2470.

[16] Youth Bar Association of India v. Union of India, 2019 SCC OnLine Utt 1769.

[17] Aaratrika Bhaumik, Delhi High Court Admin. had raised concerns about security in Rohini Court a year ago, LIVE LAW, (Sep.  27, 2021).

[18] Smt Husna Banu v. State Of Karnataka, WP No. 16729 of 2021(GM Police) c/w WP No. 15044 of 2021(GM Police).

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