Right To Internet, Quashing Of Illegal Phone Tapping & More : Best Of 2019 HC Judgments

In 2019, there were some notable High Court judgments. Among them were judgments which upheld new facets of civil liberties such as right to internet, right to marriage of a transgender person, right to personhood of asylum seeker etc.

There were also judgments which reflected the judicial system's willingness to self-correct, such as the Calcutta HC's order imposing costs on itself for a wrongful disciplinary action, Karnataka HC's order for action against Magistrate for illegal remand and Chhattisgarh HC's order for correction of errors in judicial service examination.

Here is a list of 20 notable HC judgments of 2019 (in no particular order).

1. Right to access internet part of right to privacy and right to education : Kerala HC

The High Court of Kerala declared right to access internet to be a fundamental right as part of right to privacy and right to education.

The declaration was given by a single bench of Justice P V Asha while allowing a petition filed by a student challenging restrictions on usage of mobile phones in a girls' hostel.

"When the Human Rights Council of the United Nations have found that right to access to Internet is a fundamental freedom and a tool to ensure right to education, a rule or instruction which impairs the said right of the students cannot be permitted to stand in the eye of law", the Court said in the case Faheema Shirin v State of Kerala.

2. 'Ends would not justify means' : Phone tapping orders quashed as illegal by Bombay HC

The Bombay High Court quashed orders issued by the Union Home Ministry for intercepting the phone conversations of a businessman as illegal. The Court said that phone tapping orders under the Telegraph Act can be issued only in cases of 'public emergency or in the interests of public safety'.

"To declare that de hors the fundamental rights, in the administration of criminal law, the ends would justify the means would amount to declaring the Government authorities may violate any directions of the Supreme Court or mandatory statutory rules in order to secure evidence against the citizens. It would lead to manifest arbitrariness and would promote the scant regard to the procedure and fundamental rights of the citizens, and law laid down by the Apex Court", observed the bench of Justice Ranjit More and Justice NJ Jamadar in the case Vinit Kumar v CBI.

3. Criminalization of beggary held unconstitutional : J&K HC

In a significant judgment, the Jammu and Kashmir High Court declared criminalization of beggary to be unconstitutional and struck down the provisions of the Jammu &Kashmir Prevention of Beggary Act, 1960 and the Jammu & Kashmir Prevention of Beggary Rules, 1964.

"Criminalization of begging is the outcome of extremely prejudiced social constructs of presumption of criminality against the poor and baseless stereotypes, in ignorance of the extreme exclusion and disadvantages faced by the poor who are struggling to survive. The criminalization of begging which makes poverty an offence, is intended to remove poor people from public spaces, deprive them of the Constitutional guarantees of inclusiveness and pluralism and results in further deprivation to them", observed the judgment given by a bench comprising Chief Justice Gita Mittal and Justice Rajesh Bindal in the case Suhail Rashid Bhat v State of J&K and others.

4. Transwoman a 'bride' under Hindu Marriage Act : Madras HC

In a notable judgment, the Madurai Bench of Madras High Court directed the authorities to register a marriage solemnized between a man and a transwoman holding that a transwoman is a 'bride' as per Section 5 of the Hindu Marriage Act 1956.

Justice G R Swaminathan observed in the case Arunkumar & anr v The Inspector General of Registration that "gender identity falls within the domain of her personal autonomy and involves her right to privacy and dignity. It is not for the State authorities to question this self determination of the second petitioner herein".

5. Gauhati HC's order for restoration of mobile internet which was shut down over CAA protests

Observing that shutdown of mobile internet services will bring life to a grinding halt, the Gauhati High Court recently ordered the Assam government to restore mobile internet services, which were disconnected in the wake of CAA protests.

The interim order was passed by a bench comprising Chief Justice Ajai Lamba and Justice Achintya Malla Bujor Barua in PILs filed by Advocate Banashree Gogoi, Deva Kanya Doley and journalist Ajit Bhuyan.

6. 'Girls have equal freedom as boys' : Kerala HC striking down gender discriminatory hostel rules

"A girl is having equal freedom similar to a boy", said the High Court of Kerala while striking down a stipulation in Hostel Rules which barred girl boarders from going for the first and second show movies.

"It appears that moral choice of the management is attempted to be imposed upon the Boarders. The moral paternalism is something to be frowned upon. A girl is having equal freedom similar to a boy. There are no similar restrictions in the boy's hostel. It is for the students to decide whether they should go for first or second show movies or not. This is an activity outside the hostel activity", Justice A Muhamed Mustaque observed in the case Anjitha Jose v State of Kerala.

7.  Search without warrant is violation of right to privacy : Bombay HC imposes costs on police for illegal search

The Bombay High Court ruled that conducting a search without warrant is a breach of Right to Privacy. Court also fined state government Rs.25,000 payable to the aggrieved petitioner for conducting such illegal search.

A Division bench of Justice TV Nalawade and Justice SM Gavhane of Aurangabad bench were hearing a criminal writ petition filed by one Dnyaneshwar Todmal, a driver by profession.

"This Court has no hesitation to hold that the State is liable to pay compensation to the petitioner for such illegal action. That action of police was not only the infringement into privacy but that action defamed the entire family", the Court observed.

8. Karnataka HC orders action against Magistrate who remanded accused violating SC guidelines

The Karnataka HC directed departmental proceedings against a Judicial Magistrate who remanded an accused in violation of the guidelines of the Supreme Court in Arnesh Kumar case.

The Magistrate remanded the accused on a complaint over a troll page in Facebook.

"It was incumbent upon the learned Magistrate to carefully scrutinize the papers and bestow his attention to the submissions of the learned advocate for the petitioner before granting police custody. A special care was required in the instant case because petitioner was granted anticipatory bail by the learned Sessions Judge, who is superior to him in hierarchy. It is unfortunate that despite binding directions by the Apex Court in various judgments including Arnesh Kumar, the learned Magistrate has granted police custody. By this act of the learned Magistrate, petitioner remained in police custody in spite of an anticipatory bail order in his favour. This is a serious matter and requires correction. Further, the directions contained in paragraph No.11.8 of Arnesh Kumar require initiation of departmental enquiry", observed Justice P S Dinesh Kumar in the case Jaikanth S v State of Karnataka.

9. Mere statement against government or military not sedition : Kerala HC

While setting aside the convictions of five persons under UAPA by a NIA Court, the Kerala High Court observed that mere statements against government or military will not amount to sedition.

"On a bare reading of Section 124A, it is rather clear that merely making a statement against Government of India or military will not become sedition", observed a bench of Justices A M Shaffique and P Somarajan.

10. Right to husband/children to live with wife/mother is part of right to life : Delhi HC quashes 'leave India' notice issued to Pakistani woman

The right to life under Article 21 of the Constitution of India would include the right of young children to live with their mother and the right of a husband to consortium with his wife, held the Delhi High Court while quashing 'Leave India Notice' served on a Pakistan citizen, who is the wife of an Indian citizen and a mother of two kids.

The Division bench of Chief Justice Rajendra Menon and Justice Anup Jairam Bhambhani observed in the case Mohd Javed and anr v Union of India that the "family‟, being the natural and fundamental unit of society, is entitled to protection of its integrity against arbitrary interference by the State. 

11. Pregnancy and child birth should not be seen as impediments to discharge of duty : Madras HC grants relief to police aspirant lady

Noting that taking a physical examination test during pregnancy is itself a "sign of courage", the Madras High Court has ordered the Tamil Nadu Uniformed Recruitment Board (TNURB) to select a woman as a Constable despite her having failed the physical efficiency test.

In doing so, Justice S. Vimala emphasized on the need for a change in mindset to eliminate consideration of pregnancy and child birth as an impediment in the discharge of duty.

"The pregnancy and the childbirth should not be considered as the impediment for the discharge of duty. The concessions given to pregnant women shall not be construed as a concession towards personal comfort of the women. The childbirth should be considered as a contribution to continuity of generations, without which the existence of the world is impossible," the Court observed in the case R Devika v The Chairman, Tamil Nadu Recruitment Board.

12. Calcutta HC stays deportation of Rohingya couple to 'Uphold The Spirit Of Humanity'

The Calcutta High Court granted relief to a "Rohingya" couple facing deportation to Myanmar.

Justice Sabyasachi Bhattacharyya not only issued an order of injunction during the pendency of the writ petition from deporting them from India, but also directed the state authorities to ensure that the couple are provided with the basic amenities, compatible with a life worthy of respect.

"In view of the imminent plight of the petitioners, who, despite having basic human rights in consonance with the Fundamental Rights provided by the Constitution of India as well as the U.N. Charter and the norms of any civilized society, a minimum protection ought to be given to the petitioners till the writ petition is decided, in order to uphold the spirit of humanity, if not the Fundamental Rights enshrined in the Constitution of India, which is the grundnorm of all Indian statutes", the Court observed in the case Abdur Sukur & Anr v State of West Bengal.

13. 'Married daughter' always a family member like 'married son': Uttarakhand HC reads down discriminatory compassionate appointment rules

In an important judgment in the realm of gender rights, a full bench of Uttarakhand High Court has held that non-inclusion of "a married daughter" in the definition of a "family", and denying her the opportunity of being considered for compassionate appointment, even though she was dependent on the Government servant at the time of his death, is gender discrimination and thus violative of fundamental rights.

The bench comprising the Chief Justice Ramesh Ranganathan, Justice Lok Pal Singh and Justice R.C. Khulbe observed that both a "married son" and a "married daughter", who were dependent on the government servant who died in harness, would stand on the very same footing, for the purpose of consideration to compassionate appointment.

14. Tripura HC ban on animal sacrifice 

The Tripura High Court banned animal/birds sacrifice in the temples of the state observing that the animals also have fundamental right to life under Article 21 of the Constitution of India.

No person including the State shall be allowed to sacrifice of any animal/bird within the precincts of any one of the temples within the State of Tripura, declared the bench comprising of the Chief Justice Sanjay Karol and Justice Arindam Lodh. It said that the sacrifice of an animal in a temple, not being an essential part of religion, is also violative of Article 21 of the Constitution of India.

15. Malls, multiplexes cannot charge parking fee : Gujarat HC

The Gujarat High Court ruled that malls, multiplexes, shopping establishments etc., have to provide parking to the customers without collecting any fee from them.

The Division Bench of Acting Chief Justice Anant Dave and Justice Biren Vaishnav reached this conclusion based on the interpretation of provisions in Gujarat building and town planning laws which mandate that building owners should "provide" car parking space.

The Division Bench did not agree with the contention of mall owners that collecting parking fee was part of their fundamental right to trade and business under Article 19(1)(g) of the Constitution of India. The Court noted that it is their statutory duty under the building regulations to provide parking space.

16. Finding 41 answers wrong, Chhattisgarh HC quashes results of preliminary exam for civil judge post

In a significant judgment, the Chhattisgarh High Court quashed the final results of the preliminary examination conducted by the Chhattisgarh Public Service Commission for the post of Civil Judge (Entry Level).

This was after the Court found as many as 41 errors out of 100 questions in the answer key published for the examination.

Justice Goutam Bhaduri, the single judge who heard the challenge against the result made by ten petitioners in different writ petitions, observed that the "way in which the entire examination was held cannot be sustain".

17. Calcutta HC imposes costs on itself for illegal termination of a Magistrate's services

While reinstating a judicial officer who was compulsorily retired from service, the Calcutta High Court ordered itself to pay costs of Rupees one lakh to him.

The Division bench comprising of Justice Sanjib Banerjee and Justice Suvra Ghosh allowed the judicial officer's writ appeal observing that the disciplinary committee finding him guilty of the charges cannot be sustained and the punishment imposed is disproportionate and shocking even if the guilt was established. 

18. 'Bail order should not be illusory' : Karnataka HC rules against imposing high cash security for bail

Insistence on high cash security as condition for bail would amount to discrimination and denial of bail itself, observed the High Court of Karnataka, Dharwad Bench.

"Insistence of heavy cash security or deposit would amount to discrimination and Court should consider prudently as to the conditions to be imposed", observed Justice Mohammad Nawaz.

19. Removal from voters list without hearing the person is illegal : Kerala HC

In a significant judgment, the High Court of Kerala ruled that a person should be given reasonable opportunity of hearing before removing his name from the voters list.

"The electoral registration officer is duty bound to give the person concerned a reasonable opportunity of being heard in respect of the action proposed to be taken", held the Single Bench of Justice Shaji P Chaly in the case A Subair v Chief Election Commissioner of Kerala.

20.  Asylum seekers not to be treated as illegal migrants : Madras HC in case of Sri Lankan Tamils

While directing the Centre to consider the applications of Sri Lankan Tamils for grant of Citizenship, regardless of their status as 'illegal migrants' as per strict application of Citizenship Act, Justice G R Swaminathan of the Madurai bench observed :

"The Government of India must take note of the fact that the petitioners came to India when faced with a grave threat to their lives and limbs. They had to seek asylum in India. A person who is running for his life cannot obviously be expected to wait for a visa. Therefore, viewing the petitioners' case through the prism of the technical requirements of law, does not appear to be a humanitarian approach.

An illegal migrant cannot claim such a relaxation if he had merged with society surreptitiously. That is not the case here. The writ petitioners have been housed in camps set up by the Government"