ISSUE-XV (DECEMBER 7 -DECEMBER 14)


VOX IURA MAGAZINE- ISSUE 15
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1. Plea In Supreme Court Seeks Contempt Proceedings Against Comic Artist Rachita Taneja:

A law student, Aditya Kashyap, has moved the Supreme Court seeking initiation of criminal contempt proceedings against comic artist Rachita Taneja for her illustrative tweets depicting Supreme Court being hand in glove with the ruling party, BJP. The petitioner pleaded that the three alleged posts in the form of cartoons/caricatures have shaken the public trust and confidence in the judicial system of our constitutional democracy by directly attacking and making insinuations against the Hon’ble Supreme Court of India.

The Attorney General of India, KK Venugopal had granted his consent to initiate contempt proceedings against the comic artist. The first tweet against which the AG gave consent for contempt was an illustration of Arnab Goswami intimidating Supreme Court by stating that BJP is his “Father”. Another tweet for which the AG had granted consent refers to the Supreme Court as “Sanghi Court of India” with a saffron flag instead of the tricolour in the illustration. And the third tweet alleged that there was a bargain by which the judgment pertaining to Ram Mandir at Ayodhya was delivered to favour BJP’s stand in exchange for a Rajya Sabha seat.

The petitioner placed reliance upon the judgment of Re: Prashant Bushan & Anr. (2020), where it was held that “An attack on the Supreme Court does not only have the effect of tending an ordinary litigant of losing the confidence in the Supreme Court but also may tend to lose the confidence in the mind of other judges in the country in its highest court.” The Petitioner has urged the Apex Court to take cognizance of the matter under Section 15(1)(b) of the Contempt of Courts Act, 1971 read with Rule 3 (c) of the Rules to Regulate Proceedings for Contempt of the Supreme Court, 1975, and initiate contempt proceedings. A direction was also sought to restrain Taneja from publishing contemptuous posts on social media which scandalize and undermine the authority of the Supreme Court.


2. Hate Speech Repudiates Right To Equality In A Polity Committed To Pluralism: SC

Case Name: Amish Devgan v. Union of India & Others, Writ Petition (Criminal) No. 160 of 2020.

The Judgment delivered by the Supreme Court in the case of Amish Devgan v. Union of India contains an elaborative discussion on the concept of ‘hate speech’. The judgment discusses the distinction between ‘hate speech’ and ‘free speech’, the need to criminalize ‘hate speech’ and the tests to identify it. The Judgment authored by Justice Khanna observed that: “In a polity committed to pluralism, hate speech cannot conceivably contribute in any legitimate way to democracy, and, in fact, repudiates the right to equality”.

The judgment states that it is necessary to draw a distinction between 'free speech' which includes the right to comment, favour or criticize government policies; and 'hate speech’ creating or spreading hatred against a targeted community or group. The former is primarily concerned with political, social and economic issues and policy matters, the latter would not primarily focus on the subject matter but on the substance of the message which is to cause humiliation and alienation of the targeted group.

The Bench, while making these observations, referred to the article by Alice E. Marwick and Ross Miller of Fordham University which elucidated three distinct elements to define and identify ‘hate speech’ (i.e. content-based; intent-based and harm/impact-based element) and the essay ‘Defining Hate Speech’ written by Jurist Andrew F. Sellars, it also referred to jurisprudence of foreign jurisdictions such as USA, Germany, Australia and also ECHR.

The Court observed that the object of criminalizing hate speech is to protect the dignity of an individual and to ensure political and social equality between different identities and groups regardless of caste, creed, religion, sex, gender identity, sexual orientation, linguistic preference etc. The Court also observed that 'hate speech' has no redeeming or legitimate purpose other than hatred towards a particular group.

The Court made these observations while refusing to quash the FIR registered against News 18 anchor Amish Devgan for his remarks against Sufi Saint Moinuddin Chishti while holding a debate on the Places of Worship Act 1991.


3. SC Upholds Land Acquisition Notifications For Chennai-Salem 8 Lane Expressway

Case Name: The Project Director, Project Implementation Unit v. P.V. Krishnamoorthy & others.

The Supreme Court upheld the notifications issued for acquiring land for the Chennai – Salem 8 Lane Greenfield expressway project. By partly allowing the appeals of the Union of India and the National Highways Authority of India (NHAI), the Apex Court reversed the Madras High Court’s judgment.

The 3-judge bench of the SC observed that it is not necessary for the Central Government or the NHAI to apply for prior environmental/forest clearances or permissions at the stage of planning. The prior environmental clearance is to be taken before commencement of the actual construction or building work of the national highway. While the Court held that prior environmental clearance is not needed at the stage of notifying the land for acquisition under Section 3A of the National Highways Act, it clarified that environmental clearance is necessary before issuing declaration of acquisition under Section 3D.

Background: On April 8, 2019, the Madras High Court quashed the acquisition proceedings for the 277 kilometer proposed highway passing through agricultural as well as reserve forest land.


4. Environmental Clearance Necessary Before Making Declaration Of Land Acquisition Under Section 3d Of National Highways Act: Sc

In its judgment uploading notifications for land acquisition for the Chennai - Salem eight lane expressway, the Supreme Court has observed that the declaration under Section 3D of the National Highways Act 1956 regarding acquisition of notified land , can be made only after environmental or forest clearance qua the specific land is granted. After a declaration is made under Section 3D, the lands acquired for the highway will vest completely with Central Government.

It also held that for the purposes of Section 3D (3) in respect of all projects under the Act, the time spent after issue of Section 3A notification in obtaining the environmental clearance as well as for permissions under the forest laws, will be excluded. As per Section 3D(3), if the land acquisition is not declared within one year from the notification under Section 3A, the proceedings will lapse. The Supreme Court clarified that the time required for environmental clearance can be excluded from Section 3D (3).


5. Karnataka Assembly adopts Bill against cow slaughter:

The Karnataka Legislative Assembly has adopted the Karnataka Prevention of Slaughter and Preservation of Cattle Bill, 2020.

Details: The Bill piloted by Animal Husbandry and Fisheries Minister makes even selling/disposing of the cattle for slaughtering or intentionally killing the cattle an offence. It has stringent penal provisions ranging from the imprisonment of three to seven years and penalty of ₹50,000 to ₹7 lakh for violations. If the accused is convicted, then the court can forfeit the confiscated cattle, vehicle, premises, and material on behalf of the State government. The government can appoint a tahsildar or officer, not below the rank of veterinary officer of the Animal Husbandry and Fisheries Department as the competent authority to look into various issues related to slaughtering under the proposed legislation. Slaughter of the cow and its progeny is banned in most of India; the consumption of their meat is also largely prohibited. However, this has been politically sensitive issue for long. It would also impact the livelihood of lakhs of butchers. Similar legislation in Uttar Pradesh (Prevention of Cow Slaughter Act) had seen instances of it being misused against innocent persons. Such a decision requires a detailed investigation into the possible impact on all the stakeholders.


6. Delhi High Court Stays CIC Order Directing Air Force To Disclose RTI Information About Prime Ministers' Entourage On Foreign Trips

The Delhi High Court on 11.12.2020 stayed the operation of the order passed by the Central Information Commission (CIC) directing the Indian Air Force to divulge under the Right to Information Act (RTI) information relating to Prime Minister Narendra Modi and former Prime Minister Dr Manmohan Singh's entourage on foreign trips. The CPIO had submitted that Special Flight Returns relates to official records of functioning and working of the security apparatus of the Prime Minister of India which cannot be brought in public domain for safety and security reasons.


7. Plea in Allahabad High Court Challenges UP Government's Ordinance on Religious Conversions "In the Name of Love Jihad"

A writ petition has been filed before the Allahabad High Court challenging the constitutional validity of the UP Government's controversial Ordinance against religious conversions in the name of 'love jihad'. The Plea urged the Court to declare this law as ultra vires the Constitution and in the interim, direct the authorities not to take any coercive action in pursuance thereof. In this backdrop, the Petitioner has submitted that the impugned Ordinance assumes a 'tone-deaf' position to the latest ruling of the High Court in Salamat Ansari case, which is in line with the expansive meaning given to 'personal liberty' by the Supreme Court in its decisions in KS Puttaswamy v. Union of India

In Right to privacy case, the Top Court had laid down a three-fold test to determine whether any State action violates the fundamental right to privacy. The three criteria to be met are: 'legality', 'need', and 'proportionality'.

The Petitioner has submitted that the passing of the Ordinance could satisfy the first condition of 'legality', however, the State action falters when it comes to the tests of 'need' and 'proportionality'. Significantly, Section 3 of the Ordinance prohibits one person from converting the religion of another person by marriage. Section 4 enables any person related to the converted person by blood or marriage or adoption to lodge an FIR against the conversion. Section 6 empowers Courts to declare any marriage as void if it is done for the sole purpose of unlawful conversion or if un-lawful conversion is done for the sole purpose of marriage. It is submitted that these provisions give the State "policing powers over a citizen's choice of life-partner or religion" and thus, militate against the fundamental rights to individual autonomy, privacy, human dignity and personal liberty guaranteed under Article 21 of the Constitution.


8. Government Servant Entitled To Maternity Leave Even If Child Is Born Shortly Before Joining Service: Rajasthan Hc


Case Name: Smt. Neeraj v. State of Rajasthan and others

BRIEF FACTS: The Petitioner gave birth to a child on 15.05.2016 and was given an appointment on the post of Physical Training Instructor, Grade III, vide appointment order dated 04.06.2016. After joining work on June 6th, she applied for maternity leave on 21st June 2016. On 10th November 2016, after remaining absent for 142 days she reported back to work. The State Government after two years in August 2018 granted her leave for 90 days without payment of salary and in July 2019 granted a total of 142 days leave rejecting her request for paid maternity leave. Subsequently, her probation period was extended by 112 days and delayed her confirmation of service even though her probation period of two years was completed.

CONTENTIONS: The Petitioners challenged the orders rejecting her maternity leave request and the delayed confirmation of service and relied upon the precedent Harishita Yadav v. State of Rajasthan &Ors that the petitioner is entitled to maternity leave irrespective of when she gave birth. The State Counsel objected to the petition that maternity leave as per Rule 103 could be availed only if a child was born to the employee after she joined for work.

JUDGEMENT: The Court observed that Rule 103 of the Rajasthan Service Rules, 1951 is employee-centric and that it has no nexus or correlation with the date or event of childbirth. Allowing the petition, the court directed the petitioner paid maternity leave and instructed her confirmation date to be pushed to June 5, 2018. Furthermore, the court to harmonize the provisions, upon a combined reading of Rule 103 and 103A of the RSR, declared that a female Government servant is entitled to avail maternity leave if she joins within the period of confinement, i.e. 15 days before to three months after the childbirth, even though the child was born before joining or before issuance of appointment order.


9. Not In Favour Of Imposing Family Planning, Government Tells: SC

The Government was responding to a petition filed by advocate Aswini Kumar Upadhyay to introduce a population control law. Mr. Upadhyay said population explosion had been the bane on the country. The Centre told the Supreme Court that it was against coercing couples into having a certain number of children. It said that India is a signatory to the Program of Action of the International Conference on Population and Development, 1994, which is unequivocally against coercion in family planning. It also said that international experience shows that any coercion to having a specific number of children is counter -productive and leads to demographic distortions. It said that India has been witnessing a constant decline in the total fertility rate.

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