IMPORTANT SC JUDGEMENTS...RTI TRUMPS OFFICIAL SECRETS ACT An all-out effort by the government to claim privilege and push the Rafale jets‟ pricing details back into the dark zone

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PRESENTS

SUPER 40 SERIES TOP 40 PDFS FOR UPSC PRELIMINARY EXAM 2019

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IMPORTANT SC JUDGEMENTS

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IMPORTANT SC JUDGEMENTS

RIGHT TO SELF DEFENCE

The right to self-defence extends not only to one‟s own body but to protect the person and

property of another; the Supreme Court has interpreted the provisions of the Indian Penal Code

(IPC).

The court acquitted a forest ranger, who was jailed for shooting an alleged sandalwood

smuggler in 1988.

The court observed that the right of private defence extends not only to “the defence of one‟s

own body against any offence affecting the human body but also to defend the body of any

other person.

The right also embraces the protection of property, whether one‟s own or another person‟s,

against certain specified offences, namely, theft, robbery, mischief and criminal trespass.

The court explained that the right does not arise if there is time to have recourse to the

protection of the public authorities. Nor does it extend to the infliction of more harm than is

necessary.

When death is caused, the person exercising the right of self-defence must be under reasonable

apprehension of death, or grievous hurt, to himself or to those whom he is protecting, the court

explained.

Sections 96 to 106 of the IPC deals with the right to private defence.

LIFE IMPRISONMENT IS THE RULE, DEATH PENALTY THE EXCEPTION

If a court finds it difficult to make a choice between death penalty and life imprisonment, it

should opt for the lesser punishment, the Supreme Court said in a recent judgment.

Life imprisonment is the rule to which the death penalty is the exception.

The death sentence must be imposed only when life imprisonment appears to be an altogether

inappropriate punishment, having regard to the relevant facts and circumstances of the crime


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The judgment was based on an appeal filed by a man sentenced to death for the rape and

murder of a five-year-old in Madhya Pradesh.

The court ordered the convict to serve his life sentence with a minimum of 25 years‟

imprisonment without remission.

RTI TRUMPS OFFICIAL SECRETS ACT

An all-out effort by the government to claim privilege and push the Rafale jets‟ pricing details

back into the dark zone was rejected by the apex court.

But Justice Joseph, one of the three judges on the Bench, asked the government to read out

Sections of the Right to Information (RTI) Act, 2005.

The judge said the information law has revolutionized governance and overpowered notions of

secrecy protected under the Official Secrets Act, 1923.

The Section 22 of the RTI Act, which declared the RTI to have an “overriding effect” over

OSA.

Then Section 24 mandates even security and intelligence organisations to disclose information

on corruption and human rights violations.

Section 8(2) compels the government to disclose information “if public interest in disclosure

outweighs the harm to protected interests.


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ECO SENSITIVE AREAS

The Supreme Court has directed the Union Environment Ministry to declare 10 km area around

21 national parks and wildlife sanctuaries across the country as „eco-sensitive zones‟.

A Bench led by Justice Madan B. Lokur took the initiative after its amicus curiae informed the

court that the State governments have taken no effort to protect the area around these

sanctuaries and parks.

The court recorded that the issue has been pending for the past 12 years.

Eco-Sensitive Zones (ESZs) or Ecologically Fragile Areas (EFAs) are areas notified by the

MoEFCC around Protected Areas, National Parks and Wildlife Sanctuaries.

The purpose of declaring ESZs is to create some kind of “shock absorbers” to the protected

areas by regulating and managing the activities around such areas.

They also act as a transition zone from areas of high protection to areas involving lesser

protection.

The Environment (Protection) Act, 1986 does not mention the word “Eco-Sensitive Zones”.

However, Section 3(2)(v) of the Act, says that Central Government can restrict areas in which

any industries, operations or processes or class of industries, operations or processes shall be

carried out or shall not, subject to certain safeguards.

Besides Rule 5(1) of the Environment (Protection) Rules, 1986 states that central government

can prohibit or restrict the location of industries and carrying on certain operations or processes

on the basis of certain considerations.

The same criteria have been used by the government to declare No Development Zones

(NDZs).


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INDIA GETS FIRST WITNESS PROTECTION SCHEME

The issue came up when the Supreme Court was hearing a PIL plea seeking protection for

witnesses in rape cases, involving a self-proclaimed godman as key accused in Madhya

Pradesh.

The Supreme Court has brought in place a witness protection regime in the country noting that

one of the main reasons for witnesses turning hostile is that they are not given security by the

State.

A Bench of Justices A.K. Sikri and S. Abdul Nazeer said Witness Protection Scheme, 2018

will come into effect immediately across all States.

The court said the scheme, which aimed to enable a witness to depose fearlessly and truthfully,

would be the law of the land till Parliament enacted suitable legislation.

Under it, witness protection may be as simple as providing a police escort to the witness up to

the courtroom.

In more complex cases involving organised criminal group, extraordinary measures will be

taken such as offering temporary residence in a safe house, giving a new identity, and

relocation at an undisclosed place.

The objective of this Scheme is to ensure that the investigation, prosecution and trial of

criminal offences is not prejudiced because witnesses are intimidated or frightened to give

evidence without protection from violent or other criminal recrimination.

During the course of investigation or trial of any serious offence, an application for

seeking identity protection can be filed in the prescribed form before the Competent

Authority.


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LONG COHABITATION IS PRESUMED MARRIAGE

The Supreme Court has upheld the presumption that a couple who live together as husband and

wife are legally married and the woman can claim maintenance under Section 125 of the CrPC.

The bench observed that it is fairly well settled that the law presumes in favour of marriage and

against concubinage when a man and woman have cohabited continuously for a number of

years.

Citing past judgments the Bench quoted that where a man, who lived with a woman for a long

time and even though they may not have undergone legal necessities of a valid marriage,

should be made liable to pay the woman maintenance if he deserts her.

The man should not be allowed to benefit from the legal loopholes by enjoying the advantages

of a de facto marriage without undertaking the duties and obligations.

Any other interpretation would lead the woman to homelessness and destitution which the

provision of maintenance in Section 125 is meant to prevent.

The judgment was based on an appeal filed by a woman against a Karnataka High Court

decision of June 2009.

The High Court set aside a family court order, directing the man she lived with since 1998, and

had two children by, to pay maintenance.

The family court had ordered him to pay the woman ₹3000 and the children ₹2500 each on a

monthly basis.

The court said they were accepted as husband and wife by society.


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JUSTICE VERMA PANEL REPORT

The WCD minister has recently announced its plan to set up a panel of judges to look into the

legal and institutional framework to curb sexual harassment at workplaces following the

#MeToo campaign on social media.

However, as early as 2013, the Justice J.S. Verma Committee, in its report on gender laws

which would have proven efficient to tackle issue.

The panel was formed in the aftermath Nirbhaya gangrape Case in 2012 and the ensuing

nationwide protests, and submitted its report on January 23, 2013.

At that time of the submission of the report, the SHWWA bill had already been pending in

Upper house of Parliament.

The Committee termed the Bill “unsatisfactory” and said it did not reflect the spirit of the

Vishakha guidelines — framed by the Supreme Court in 1997 to curb sexual harassment at the

workplace.

The report noted that an ICC under the SHWWA would be “counter-productive” as dealing

with such complaints in-house could discourage women from filing complaints.

Instead, the committee proposed forming an employment tribunal to receive and adjudicate all

complaints.

To ensure speedy disposal of complaints, the Committee proposed that the tribunal should not

function as a civil court but may choose its own procedure to deal with each complaint.

The panel also said that the time-limit of three months to file a complaint should be done away

with and a complainant should not be transferred without her consent.


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OPENING SABARIMALA TO WOMEN OF ALL AGES

The Supreme Court in a majority opinion of 4:1 lifted the centuries-old practice of prohibiting

women to enter the Lord Ayyappa temple at Sabarimala in Kerala.

The Court condemned the prohibition as hegemonic patriarchy.

The main opinion shared that on one side we pray to goddesses; on the other, women of a

certain age are considered „impure‟.

This dualistic approach is nothing but patriarchy practised in religion.

It said that exclusion on grounds of biological and physiological features like menstruation was

unconstitutional as it was violative of the right to equality and dignity of women.

However the Nair Service Society countered the apex court‟s observations about patriarchy.

The prohibition was not based on misogyny but the celibate nature of the deity.

In a concurring opinion, Justice D.Y. Chandrachud held that to treat women as the children of a

lesser God was to blink at the Constitution.

The logic behind the ban was that presence of women deviated men from celibacy

(brahmacharya).

This was placing the burden of a men‟s celibacy on women thus, stigmatizing women and

stereotyping them.

Individual dignity of women could not be at the mercy of a mob.

The Sabarimala prohibition was a prejudice against women, which was zealously propagated

and was not an essential part of religion.

ADULTERY NO LONGER A CRIMINAL OFFENCE


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A five-judge Constitution Bench, led by CJI Dipak Misra held that adultery is not a crime and

struck it off the Indian Penal Code.

The bench observed that Section 497 (adultery) of the Code “commands” married couples to

remain loyal to each other.

The Bench also held Section 198 (2) of the CrPC, which gives the cuckolded husband the

exclusive right to prosecute his wife‟s lover, manifestly arbitrary.

The court observed that two individuals may part if one cheats, but it is not viable to attach

criminality to the infidelity caused by adultery.

Besides, there is no data to back claims that abolition of adultery as a crime would result in

“chaos in sexual morality” or an increase of How married couples deal with adultery is

absolutely a matter of privacy.

Adultery is not a crime if the husband allows or consents to his wife‟s extra-marital affair.

Section 497 treats a married woman as her husband‟s possession.

The provision is a reflection of the social dominance of men prevalent 150 years ago and the

biblical orders of the colonial government.

TRIPLE TALAQ IS CRIMINAL OFFENCE

The Union Cabinet has cleared an ordinance as well as Presidents assent has been received that

makes talaq-e-biddat, or instant triple talaq, a criminal offence that will attract a maximum jail

term of three years.

The new law incorporates safeguards, including a provision for bail to an accused before the

start of the trial.

The offence of instant triple talaq has also been “compoundable” or a provision that allows the

wife to withdraw a complaint or approach the magistrate for a dispute settlement.

201 cases had been reported from across the country after the Supreme Court banned triple

talaq in August 2017.

Since January 2017, 430 cases had been reported until September this year.

The practice of triple talaq continues in spite of the Supreme Court having annulled it and the

Lok Sabha having passed a Bill that is pending in the Rajya Sabha.

While instant triple talaq will continue to be a “non-bailable” offence the police cannot grant

bail at the police station the accused can approach a magistrate for bail even before trial.

The magistrate could exercise discretion to grant bail “after hearing the wife”.


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The magistrate would also have power to decide the quantum of compensation and subsistence

allowance for the victim and her minor children.

Another safeguard that had been added is that the police can lodge an FIR (first information

report) only if the complaint is filed by the wife (victim), her blood relations or her relatives by

virtue of her marriage.

Non-relatives or neighbours cannot lodge a complaint under the proposed law.

STATE CAN STOP VOLUNTARY RETIREMENT OF DOCTORS

The State can stop government doctors from taking voluntary retirement in public interest, the

Supreme Court has ruled.

The fundamental right to retire is not above the right to save lives in a country where

government hospitals cater to the poorest.

The concept of public interest can also be invoked by the government when voluntary

retirement sought by an employee will be against public interest.

The court said public health was suffering from a scarcity of doctors. Qualified doctors did not

join the public service.

Even if they did so, they chose voluntary retirement and went into lucrative private practice.

The Court said that poor could not be put in peril by a paucity of specialists in government

hospitals.

The State governments had an obligation “to make an endeavour under Article 47 to look after

the provisions for health and nutrition.”

The doctors, as citizens, had certain fundamental duties under Article 51(A) towards their

fellow citizens.

The right to practice a profession under Article 19(1) (g) was subject to the interest of the

general public, the court said.

The ruling is based on an appeal by the Uttar Pradesh government against the Allahabad High

Court‟s decision.


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SC SCRAPS NOTA FOR RS POLLS

The Supreme Court scrapped the use of NOTA (none of the above) option for Rajya Sabha

polls, saying it would usher back the “Satan of defections.”

A Bench, led by CJI held that the option is meant only for universal adult suffrage and direct

elections and not elections held by the system of proportional representation by means of the

single transferable vote as done in the Rajya Sabha.

The option of NOTA may serve best in direct elections but in the election to the Council of

States, it would not only undermine the purity of democracy but also serve the Satan of

defection and corruption.

The court pointed out that in the voting in Rajya Sabha elections, there is a whip and the

elector is bound to obey the command of the party.

The court observed that while NOTA option looks attractive in Rajya Sabha polls, it actually

harms an electoral process where open ballot is permissible and party discipline reigns.

Moreover where the elector‟s vote has value and the value of the vote is transferable.

The party discipline in this kind of election is of extreme significance, for that is the fulcrum of

the existence of parties.

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Documents

IMPORTANT SC JUDGEMENTS...RTI TRUMPS OFFICIAL SECRETS ACT An all-out effort by the government to claim privilege and push the Rafale jets‟ pricing details back into the dark zone