Priya Sahgal in conversation with Aishwarya Bhati, ASG at ITV Group’s Shakti Awards 2022 and the We Women Want conclave-
Q: Thank You Aishwarya for joining us and we had many conversation with you but first as Additional Solicitor General so we congratulate you for that good to see you here and in fact you just heard a conversation around the medical do’s and don’ts you know that every women should be aware of I want to talk to you about the legal do’s and don’ts you know if there are some laws that we don’t know that work in our favour so in terms of educating people I think the main areas where the women faces needs help could be either in a marriage or may be sexual harassment at work place, so first in terms of marriage, domestic violence, can you educate our audience as to their rights?
A: Thank you! For having me, I think if we divided into two verticals you know a women at home and a women out of home I think that would be a easier way to deal with it, if we speak about a women at home, laws are very many but if we could touch some of the verticals that are extremely critical for women to know in terms of their rights their duties and you know in the home this is first very significant to understand that despite the fact that we are all governed by our personal laws in our marriages we don’t have a uniform law that wants all of us so to speak because our personal laws are still paramount when it comes to the matrimonial matters, there are still extremely critical gender neutral laws which are there to help out women who may be facing domestic abuse, violence, assault, harassment of any kind the topmost of that is the Domestic Violence Act, 2005, which is hybrid act so it starts of like a civil act and then it converts into criminal consequences so that way it cuts across all personal laws so it is a law that is available to all there are also sections in the Indian Penal Code with regard to mental cruelty that a women may facts that’s 498A, there is CrPc provision of maintenance i.e., 125 CrPc very old one but Domestic Violence Act has sought of become one stop shop for and this is interesting because its just not covered just women in marriages but it covers women in all Domestic relationships so weather you are a mother at home you are a daughter at home, you are a daughter-in-law at home, sister-in-law at home, it covers everyone who is in a domestic relationship, it allows for your rights to be safeguarded in terms of yours protection homes, maintenances, economic stability it deals with sexual abuse. Emotional abuse, physical abuse, financial abuse so it’s a very comprehensive law I think that’s is something that we all should know about and you use it whenever required also with the intervention of some governmental scheme in terms of Supreme Court judgements there are one stop centres available in every district across the country, there are district legal aid committees which are there in every district across the country in some places its right up to the taluka level but district legal aid committees are available and otherwise legal aid is available only on your financial condition if you deserve that you know in terms of your financial condition then only you get it but for women in child related issues it is available irrespective of your economic capacity so I think that help should be taken, I also think its important with more women working making their own living I think its important that all of us should make our succession plan we should make our wills so that we are determined you know we determine how our legacy is to be devolved how it should go into because we are again caught up in personal laws there are then adoption related issues every women has the right to adopt a child irrespective of the matrimonial status so there are very progressive laws that have now you know come into our domestic fields and if we talk about the field outside the home.
Q: Domestic violence now what happens is if you want to repost a case of a domestic violence very often the husband comes out in the few months maximum a few years and then he comes and takes revenge you know in the morning we had a session with the victims who had acid attacks and they were telling us how they complaint about the husband and you know he was behind bars within two years he came out and then they are worried about revenges, rape cases we have the same problem also?
A: So,Priya Ji, unfortunately, the System of rule of law the justice delivery system takes time but there are mechanisms in place so that the women has the financial comfort she has the help of a Nyaya Mitra, which is a legal paralegal help which is available through these one stop centres, medical assistance if she requires.
Q: What is the Nyaya Mitra can you tell us?
A: So Nyaya Mitra, what is contemplated is somebody who’s a paralegal who is legally trained but you know not a compete lawyer but a bridge between the legal assistance that the women might require so she has better access to the justice delivery mechanism now you know relationships that are hunky to read that they don’t have problems, problems are there you know when there’s refusal from the other side so I think when you are running into trouble I think it’s important for us to be stronger to seek support to seek help and be determined about fighting its true, the systems are emplaced there is help that is available you just need to reach out for it.
Q: Issue of marital rape also, I believe there is no law against marital rape if I may be corrected, so how does a women deal with that?
A: So, I’ll correct you a little Domestic Violence Act deals with sexual abuse so that is a hybrid law that already makes sexual abuse as a matrimonial wrong which can convert into some criminal consequences also if there is violation to the protection order, restrained orders etc that could be passed under the Domestic Violence Act. However, under the IPC there is an exception so under the IPC sexual intercourse of ab married man with his own wife is not treated as a marital rape of course the matter is sub judice, like I hold a important position as a Law Officer of a Union Government so I refrain from speaking about these things which I will have to be dealing with in court but just as a way of passing reference I think we have far bigger problems in terms of you know if client comes to our office not I mean we have to as lawyers we have to ask them dud you get married in Hindu religion of you know in Islamic religion, Christian religion or how did you get married I think we need to stop asking those questions our rights our duties and responsibilities should be gender neutral and religion neutral what is this that we and its just matrimonial laws that are still confined in that corner of know being delt by personal laws.
Q: Well, I think the correction is happening in the Uniform Civil Court is on its way if I am not wrong, okay regarding property inheritance also you know the women rights to a large extent have been you know she gets equal rights but is there anything else we don’t know and you would like to share with us the finer points?
A: Yes, see I absolutely feel that see succession laws will apply if a person has not made his will so if the testamentary document has been made by the person then the testamentary document alone which is a will testamentary document is nothing but a will so that is why I recommend to every women and every man also if you have got any legacy, if you have made any property if you have own anything please make sure that you make a will, you just need to have two witness to that will and that’s it, it need not to be a registered will, you just make that will and you can registered it if you like I mean its optional always but its not mandatory for that will to be registered but please make a will whatever you want done with your property should be determined by you.
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Disproportionate assets case: Delhi High Court stays Lokpal proceedings initiated against Jharkhand Mukti Morcha chief Shibu Soren
On Monday, the Delhi High Court has stayed the proceedings initiated by Lokpal of India under the provisions of the Lokpal & Lokayuktas Act, 2013 against Jharkhand Mukti Morcha (JMM) Chief and Rajya Sabha MP Shibu Soren in connection with a disproportionate case of assets.
The bench comprising of Justice Yashwant Varma observed and has passed an order on Soren’s plea challenging the validity of the said proceedings, claiming that the same was ex facie bad in law and without jurisdiction.
In the present case, the proceedings were initiated by Lokpal of India pursuant to a complaint dated August 5, 2020 filed by BJP’s Nishikant Dubey. Therefore, it has been directed by the CBI to make a preliminary enquiry into the Complaint under section 20(1)(a) of the Lokpal and Lokayuktas Act, 2013. It was claimed by Soren that the said order was not served on him.
While claiming the complaint was false, frivolous and vexatious, Soren in his plea submitted that according to section 53 of the Act and there is a statutory bar against the Lokpal of India assuming jurisdiction to investigate or inquire into any Complaint made after the expiry of seven years from the offence alleged.
The plea reads that the initiation of the proceedings under the Complaint, or at the very least, continuation thereof, once it has been demonstrated by the preliminary inquiry that it pertains to alleged acquisitions prior to the 7-year period and is clearly barred by statute, without jurisdiction and the same is liable to be quashed.
Further, the petition filled submits that the maximum period of 180 days for completion of preliminary enquiry from the date of Complaint expired on February 1, 2021. In this backdrop, it has been stated that by this time, only on July 1, 2021, the comments were sought from Soren which is beyond the prescribed statutory period.
The plea adds that the final preliminary enquiry report was submitted by the CBI on 29.06.2022, about a year and a half after expiry of the 180- day period. Such purported report is void and null and non-est in the eyes of law and cannot be received or considered by the Respondent No.1.
Thus, the court took note of the order passed by Lokpal of India dated August 4, 2022 directing that proceedings under section 20(3) of the Lokpal Act be initiated to determine whether a prima facie case existed to be proceeded against Soren. It is Soren’s case that the order was passed without considering the preliminary objection on jurisdiction being raised by him.
In the said order, the court noted that all the Lokpal of India recorded was that the comments received from the petitioner were forwarded to CBI so as to examine and submit an enquiry report.
It was ordered by the court that the challenge to assumption of jurisdiction by respondent no. 1 (the Lokpal of India) has neither been answered and nor dealt with. Matters require consideration. Subsequently, there will be a stay of proceedings pending before the Lokayukta.
Accordingly, the court will now hear the matter on 14 December.
DELHI HC SETS ASIDE MURDER CONVICTION & LIFE SENTENCE OF MAN WHO WAS UNPRESENTED BY LAWYER; REMANDS CASTE BACK TO TRIAL COURT
The Delhi High Court in the case Narender @ Lala v. State Of NCT Of Delhi observed and has set aside the orders of conviction for murder and sentence of life imprisonment awarded to a man in 2018 who was unrepresented by a lawyer before the Trial Court. Thus, the Delhi High Court has remanded the case back to the Trial Court for cross examination of certain prosecution witnesses.
The division bench comprising of Justice Mukta Gupta and Justice Anish Dayal observed and was of the view that there had been a grave miscarriage of justice to the man as when number of witnesses were examined, he was not represented by a counsel and that the legal aid counsel, who was present before Trial Court and was appointed on the same day and asked to cross- examine the witnesses on the same day.
On March, 2018, Narender was convicted for offence of murder punishable under section 302 of Indian Penal Code, 1860. On 4th May, 2018, he was sentenced by the Trial Court for life imprisonment and also to pay a fine of Rs. 10,000.
In the present case, the case of the prosecution was that the man had committed murder of his wife by strangulating her to death.
In a appeal, it was argued by the man that during the substantial course of trial, he was not represented by a lawyer and hence the trial in the absence of a lawyer had seriously prejudiced him. He thus sought recalling of all the prosecution witnesses and thereby ensuring a fair trial.
The Court observed that the manner in which the trial is conducted, there was a serious denial of fair trial to the appellant and the appellant is required to be given an opportunity to cross-examine the witnesses i.e., the witnesses examined in the absence of the lawyer, or the lawyer having been appointed on the same day from the legal aid and is asked to cross-examine the witnesses.
Further, the court remanded the back to Trial Court for cross-examination of ten prosecution witnesses. Also, the court directed the Trial Court Judge to follow due process of law and also to record the statement of the man under Section 313 CrPC and permit leading the defence evidence if so required.
The Court ordered that the case be listed before the learned Trial Court on 26th September, when Superintendent Tihar Jail will product the appellant before the learned Trial Court and the learned Trial Court is requested to expedite the trial and conclude the same preferably within four months.
SUPREME COURT REFUSES TO ENTERTAIN PLEA CHALLENGING EXCLUSION OF SC/ST RESERVATION IN JHARKHAND DISTRICT JUDGES APPOINTMENT
The Supreme Court in the case Dr. B.R. Ambedkar Educational And Cultural Trust v. Hon’ble High Court Jharkhand And Ors. observed and has refused to entertain a plea challenging the non-inclusion of reservation for Scheduled Castes, Scheduled Tribes and Other Backward Classes communities in the process of appointment of District Judges in pursuant to an advertisement issued in March, 2022 by the High Court of Jharkhand. The present petition claimed that the exclusion of reservation violates Jharkhand State Reservation Policy and constitutional guarantee under Article 16(4). Apart from this, it is also in derogation of a resolution being passed by the High Court vouching to implement reservation in the Jharkhand Superior Judicial Service.
The bench comprising of Justice D.Y. Chandrachud and the Justice Hima Kohli observed and has granted liberty to the petitioner to file a petition under Article 226 of the Constitution before the Jharkhand High Court.
The court while considering that the process of appointment as per the concerned notification is underway, Justice Chandrachud asked the petitioner to approach the High Court with respect to future appointments.
It stated that “For the future you can file a petition before the High Court… We will give you liberty to approach the High Court under Article 226 of the Constitution.”
The bench of Justice Chandrachud observed that the Decisions of the Administrative side of the High Court can be challenged before the judicial side of the High Court. You can move the High Court.
In the present case, a writ petition challenging a similar notification was filed in 2017 before the High Court, which was eventually dismissed. It was observed by the High Court that there is no duty vested in the authorities to reserve seats for all posts, more particularly in higher judiciary. Moreover, it had already initiated the appointment process, the High Court opined that it cannot alter the rules midway. Thus, the appeal filed before the Apex Court was also dismissed.
However, in 2018 the Full Court of the Jharkhand High Court had agreed in principle to grant reservation in the recruitment for Jharkhand Superior Judicial Service. The advocates belonging to the SC/ST/OBC communities in 2021 had made representations to the Chief Justice of the High Court requesting for the implementation of the Reservation policy in appointment of District Judges (direct entry from Bar)/ superior judicial service. The impugned notification was issued without incorporating reservation for SC/ST/OBC communities in March 2022.
Mr. Arvind Gupta, Advocate on Record has filled the present petition.
Right to contest election is not a fundamental right; it is only a right conferred by statute: Supreme Court
The Supreme Court in the case Vishwanath Pratap Singh vs Election Commission of India observed that the right to contest an election is not a fundamental right but only a right conferred by a statute.
The bench comprising of Justice Hemant Gupta and the Justice Sudhanshu Dhulia observed while dismissing a Special Leave Petition filed by Vishwanath Pratap Singh that an individual cannot claim that he has a right to contest election and the said stipulation violates his fundamental right, so as is required under the Act, to file his nomination without any proposer.
Also, the court imposed a cost of Rupees one lakh on Singh.
In the present case, Singh had first approached the Delhi High Court challenging a notification issued by Election Commission of India for election to Rajya Sabha after he was not allowed to file his nomination without a proper proposer being proposing his name. His contentions were rejected by the High Court that his fundamental right of free speech and expression and right to personal liberty has been infringed.
While dismissing the SLP, the Apex Court observed that the writ petition before the High Court was entirely misconceived.
The bench observed while referring to earlier judgments viz Javed v. State of Haryana, (2003) 8 SCC 369 and Rajbala v. State of Haryana (2016) 2 SCC 445 wherein it was stated that the right to contest an election is neither a fundamental right nor a common law right. It is a right conferred by a statute.
However, the Supreme Court in Javed (supra) had made the following observations: Right to contest an election is neither a fundamental right nor a common law right and it is a right conferred by a statute. At the most, in view of Part IX having been added in the Constitution of India that a right to contest election for an office in Panchayat may be said to be a constitutional right and a right originating in the Constitution and given shape by a statute. But even if, it cannot be equated with a fundamental right. It is stated that there is nothing wrong in the same statute which confers the right to contest an election also to provide for the necessary qualifications without which a person cannot offer his candidature for an elective office and also to provide for disqualifications which would disable a person from contesting for, or from holding, an elective statutory office.
It was held in Rajbala (supra) that the right to contest for a seat in either of the two bodies is subject to certain constitutional restrictions and could be restricted further only by a law which the parliament made.
Further, the court added that Singh did not have any right to contest election to the Rajya Sabha in terms of the law made by the Parliament.
The Court stated while dismissing the SLP that the Representation of People Act, 1950 read with the Conduct of Elections Rules, 1961 has contemplated the name of a candidate to be proposed while filling the nomination form. However, it cannot be claimed by an individual that he has a right to contest election and the said stipulation violates his fundamental right, so as to file his nomination without any proposer as is required under the Act.
Post-conviction compounding of offences is permissible: Himachal Pradesh High Court
The Himachal Pradesh High Court in the case Shri Kantu Ram v Shri Beer Singh recently observed that a court, while exercising powers under Section 147 of the Negotiable Instruments Act and can proceed to compound the offences even after recording of conviction by the courts below.
The bench comprising of Justice Sandeep Sharma observed in a case where the revision Petitioner, who was convicted under Section 138 of the NI Act by the Magistrate Court and was aggrieved by subsequent dismissal of appeal by the Sessions Court and had agreed to pay the amount due and settle the matter.
Thus, the petitioner had sought compounding of offences.
In the present case, the respondent admitted the factum with regard to receipt of the amount due from the accused and expressed that the prayer made on behalf of accused for compounding of offence can be accepted.
However, the High Court allowed the prayer and the offence committed by the Petitioner under Section 138 NI Act was ordered to be compounded.
The Court observed that the Reliance was placed on Damodar S. Prabhu V. Sayed Babalal H. (2010) 5 SCC 663, wherein the Apex Court has categorically held that court, while exercising power under Section 147 of the NI Act and can proceed to compound the offence even after recording of the conviction by the courts below.
‘Pensionary benefits to employee, who is removed from service for misconduct, is not at par with those who retire on superannuation’
The Jammu and Kashmir and Ladakh High Court in the case Bashir Ahmad Wani v Jammu and Kashmir Grameen Bank and Another recently observed and stated that an employee who is removed from service for misconduct is not at par with those who is being retired on superannuation.
The bench comprising of Justice Sanjeev Kumar observed while dismissing the pension claim made by a former employee of the J&K Grameen Bank, who was removed from service in 2011.
In the present case, the petitioner had sought benefit of the J&K Grameen Bank (Employees) Pension Regulations, 2018 whereby provision was made for terminal benefits.
However, the court disallowed the claims on two grounds:
Firstly, that at the time of removal of the petitioner from service when there were no norms, rules or regulations providing for the benefit of pension to the employees of the respondent-Bank.
In the year 2011, the employees of the respondent-Bank were governed by the J&K Grameen Bank ( the Officers and Employees) Service Regulations, 2010… it is abundantly clear that it does not prescribe imposition of a penalty of removal along with the pensionary benefits.
Secondly, it was opined by the court that though the 2018 Regulations had been made applicable to those employees who were in service between 1st day of September, 1987 and 31st day of March, 2010 and the employees retired from the services of the Bank before 31st day of March, 2018, however, this leeway cannot come to aid of the Petitioner.
The Curt observed that the reason for finding that the Petitioner was not an employee who had “retired” on superannuation from the bank. Rather, he was “removed” for misconduct.
The Court stated that the regulations apply to those employees who retired from the service of the Bank before 31.03.2018 and not the employees who were terminated for misconduct. Viewed thus, the order of removal of the petitioner dated 02.09.2011 holding the petitioner entitled to terminable benefits and cannot, by any stretch of reasoning, be construed to be an order of removal with the benefit of the pension. Neither, the petitioner, at the time of his removal from service, nor with the promulgation of Pension Regulations of 2018, is entitled to the benefit of pension.
Accordingly, the court dismissed the petition.
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