Supreme Court Weekly Round Up, August 23 To August 29, 2021

While quashing an externment order passed against a journalist, the Supreme Court observed that a person cannot be denied his fundamental right to reside anywhere in the country or to move freely throughout the country, on flimsy grounds.

The bench comprising Justices Indira Banerjee and V. Ramasubramanian observed that the drastic action of externment should only be taken in exceptional cases, to maintain law and order in a locality and/or prevent breach of public tranquility and peace.

The court observed that the impugned externment order was an outcome of the complaints lodged by the journalist against government officials, some Madrasas and persons connected with such Madarasas who later lodged FIRs against the Appellant. The FIRs are clearly vindictive, retaliatory and aimed to teach a lesson to the Appellant and stifle his voice, the court said.

The Supreme Court reiterated that, at Section 482 CrPC stage, a High Court is not required to appreciate the evidence to find out whether the accused is likely to be convicted or not.

In this case, the High Court had quashed a murder case against one of the accused. The wife of the deceased thus approached the Apex Court contending that there is ample material against the accused.

The Supreme Court observed that seriousness of crime is an aspect to be considered while granting bail to an accused. The bench of Justices DY Chandrachud and MR Shah set aside a bail granted by the High Court to a murder accused.

One Harjit Singh had approached the Apex Court against the High Court order granting bail to persons accused of murdering his father. He contended that the High Court has not at all considered the seriousness of the offence; the specific allegation in the FIR that even while in jail he hatched the conspiracy along with other co-accused and that he was the master mind and the main conspirator.

The bench observed that the relevant considerations are not at all considered by the High Court in its true perspective. The antecedents of accused; the threat perception to the appellant and his family members are also not considered by the High Court, the court observed. 

The Supreme Court has observed that economic criterion cannot be the sole basis for identifying 'creamy layer'.

"..the State of Haryana has sought to determine 'creamy layer' from backward classes solely on the basis of economic criterion and has committed a grave error in doing so. On this ground alone, the notification dated 17.08.2016 requires to be set aside", the Supreme Court observed.

Holding so, a bench of Justices L. Nageswara Rao and Aniruddha Bose quashed a notification issued by the State of Haryana specifying the criteria for exclusion of 'creamy layer' within the backward classes.

Expressing distress at the Covid pandemic devastating the lives of many children who lost their parents at a tender age, the Supreme Court has directed the Child Welfare Committees to complete the pending enquiries with respect to such children within three weeks.

"More than a lakh children have lost either or both parents during this pandemic. It is heart-wrenching to note that the survival of so many children is at stake." the Bench said.

A Division Bench comprising Justice Nageswara Rao and Justice Aniruddha Bose made the observation while considering the suo motu case taken to deal with the plight of children affected by COVID.

To ensure the uninterrupted education of children who lost either or both their parents after the onset of COVID in March 2020, the Supreme Court has asked the State Governments to shoulder the burden of their school fees if the private schools are unwilling to waive it.

"For children who have lost either parent or both parents after March 2020, the State Governments shall confer with private schools to waive the fee of the distressed children for the current academic year. In case, the private institutions are unwilling to effectuate such waiver, the State Governments shall shoulder the burden of the fee", the Court ordered.

A bench comprising Justices L Nageswara Rao and Aniruddha Bose underscored that the states have the obligation to facilitate the education of such children, as per the mandate of Article 21A of the Constitution of India.

The Supreme Court this week refused to entertain an appeal filed by the National Investigation Agency against the Bombay High Court's order upholding bail granted to a Mumbai youth Areeb Majeed, who is facing trial under UAPA following his return from Syria after joining Islamic State,

A division bench comprising Justices S Abdul Nazeer and AS Bopanna observed that the High Court has detailed the reasons for its decision and has imposed stringent condition.

Following his return, Majeed is facing trial in a case registered by the NIA under the anti-terror law UAPA and Section 125 IPC(waging war against Asiatic power in alliance with India)

The Bar Council of India informed the Supreme Court that it is proposing to frame rules to curtail strikes by lawyers and court boycotts and to take action against bar associations who act in breach and against advocates who promote such strikes through social media.

The BCI Chairman Senior Advocate Manan Kumar Mishar told a bench comprising Justices DY Chandrachud and MR Shah that it has convened a meeting with all bar councils in this regard.

"We convened meeting of all bar council with BCI. We propose to frame rules to curb strikes and boycotts and rules to punish members of bar Association who go on strike without proper justification", Mishra told the bench.

The Supreme Court this week issued notice in the special leave petition filed by the National Investigation Agency challenging the Kerala High Court judgment which did not interfere with the trial court's order granting bail to law student Allan Shuhaib in a UAPA case registered over alleged Maoist links.

A bench comprising Justices UU Lalit and Ajay Rastogi tagged the petition along with the petition filed by Allan Shuhaib's co-accused Thwaha Fasal, a journalism student, challenging the very same judgment of the Kerala High Court which set aside the bail granted to him by the Special NIA Court.

Expressing deep concern at the long pendency of criminal cases against sitting and former MPs/MLAs, the Supreme Court has called for the establishment of more Special/CBI Courts to deal with such matters.

The Court said that the establishment of only one Special Court to try cases against legislators in a State with large number of such cases will be a travesty of justice.

"Amicus Curiae has rightly pointed out that in a State like Madhya Pradesh, establishment of only one Special Court at Bhopal is nothing but a travesty of justice as it is physically impossible for the prosecution and the defence to be present in the Court from different parts of the State", the Bench remarked.

The Supreme Court this week pulled up the Tihar Jail authorities for acting in connivance with the Chandra brothers in engaging in illegal activities by flouting the jail manual, dissipating proceedings, derailing investigation etc., in the Unitech money laundering case.

A bench of Justices DY Chandrachud and MR Shah ordered to shift ex-Unitech promoters Sanjay Chandra and Ajay Chandra from Tihar jail to Mumbai's Arthur Road jail and Taloja Jail, to be house separately.

The court also asked why the Commissioner, Delhi Police has not taken any action for 10 days despite the communication by the Enforcement Directorate to him making certain allegations against the jail staff. The bench directed the Commissioner to personally carry out an inquiry into the same and submit a report within 4 weeks.

The Supreme Court this week observed that it expected the West Bengal Government to 'show restraint' and wait before proceeding with the judicial enquiry ordered by it into the Pegasus issue, when the Court is considering the matter.

However, the Court refrained from passing any order to stay the functioning of the judicial commission constituted by the West Bengal Government, after Senior Advocate Dr. Abhishek Manu Singhvi made an oral assurance that he will convey the message of the Court to the State Government.

The bench comprising Chief Justice of India NV Ramana and Justice Surya Kant tagged the petition challenging the West Bengal Government notifications along with the other petitions on Pegasus issue, which are likely to be posted next week.

The Supreme Court this week requested the Delhi High Court to decide within two weeks the petition filed before it challenging the appointment of Rakesh Asthana IPS as the Delhi Police Commissioner.

The Court issued this order while considering a writ petition filed by Centre for Public Interest Litigation under Article 32 challenging the appointment of Asthana.

A bench comprising Chief Justice of India NV Ramana, Justice DY Chandrachud and Justice Surya Kant gave liberty to the petitioner, CPIL, to intervene in the petition before the High Court.

The Supreme Court this week referred to a larger bench the appeals filed by the Employees Provident Fund Organization (EPFO) and the Union of India challenging the judgments of Kerala, Delhi and Rajasthan High Courts which quashed the Employee's Pension (Amendment) Scheme, 2014.

A division bench comprising Justices UU Lalit and Ajay Rastogi said that the principal questions that arise for consideration are :

1. Whether there would be a cut-off date under paragraph 11(3) of the Employees' Pension Scheme and

2. Whether the decision in R.C. Gupta v. Regional Provident Fund Commissioner (2016) would be the governing principle on the basis of which all these matters must be disposed.

The Attorney General for India KK Venugopal urged the Supreme Court on Tuesday to reverse the controversial judgment of the Bombay High Court which held that the offence of sexual assault under POCSO will not be attracted if there is no direct 'skin to skin' contact between the accused and the child.

Terming the judgment a "dangerous and outrageous precedent", the Attorney General submitted before a bench comprising Justices UU Lalit and Ajay Rastogi that the judgment would mean that a man who sexually abuses a child after wearing a pair of surgical gloves will be acquitted.