Decriminalising adultery could lead to instability in armed forces, Centre tells Supreme Court - The Daily Guardian
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Decriminalising adultery could lead to instability in armed forces, Centre tells Supreme Court

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To start with, the Centre has in a measured, commendable and calibrated move very rightly sought a clarification from the Supreme Court to the effect that the 2018 order decriminalizing adultery would apply only to civilians and not defence personnel because not prosecuting soldiers for adultery could cause “instability” in the armed force. Soldiers are expected to maintain utmost discipline always and if they lose their moral character then certainly this will lead to erosion of faith among the soldiers on their seniors who indulge in adultery and this can never be in the long term interest of armed forces as they will stop respecting them and will instead themselves also try to emulate the same which will certainly have potentially dangerous consequences for our nation as it is the armed forces who save guard our country from not just external aggression but also internal disturbances! How can this be allowed to happen under any circumstances?

While maintaining that “honour is the sine qua non of the services”, a plea by the Ministry of Defence (MoD) asserted that adultery must remain a valid ground to prosecute defence personnel under army laws? How can adultery be ever tolerated in the armed forces? What message will go among the soldiers if it is decriminalized in armed forces also? Will it not encourage adultery? The answer is quite ostensible!

It must be recollected that in September 2018, a five Judge Constitution Bench had struck down Section 497 of the IPC pertaining to adultery in the notable case titled Joseph Shine vs Union of India declaring it to be unconstitutional and violative of the right to equality of women in treating them as “chattel” (an item of property) and inferior to their husbands. As most of us know that Section 497 made adultery an offence only with respect to a man who has a relationship with the wife of someone else. The wife was considered neither an adulterous nor an abettor while the man instead could be jailed for up to a term of five years.

Truth be told, the MoD’s clarification plea was argued by Attorney General KK Venugopal before a Bench headed by Justice Rohinton Fali Nariman where the law officer submitted that the Army Act and other pertinent laws must be treated as outside the scope of the 2018 judgment. KK Venugopal who is one of the most senior and eminent lawyer of the Apex Court is absolutely right in pleading so. He rightly told the Bench that, “We thus want a clarification that the…judgment is not applicable to personnel of the armed forces.” Agreeing with the Attorney General, the Bench also mercifully responded that it was also of the prima facie view that the IPC and the Army Act or other laws governing navy and air force stood on a different footing and therefore even as adultery was no more an offence, it could constitute an “unbecoming conduct” under the Act.

To put things in perspective, the plea by the MoD has very rightly stated that, “The aforesaid judgment passed by this court may cause instability within the Services, as defence personnel are expected to function in peculiar conditions during the course of which many a time they have to stay separated from their families for long durations, when they are posted on borders or other far-flung areas or in areas having inhospitable weather and terrain.”

As it turned out, KK Venugopal also on January 13, 2021 submitted before the Apex Court Bench headed by Justice Rohinton Fali Nariman that the armed forces required a completely different standard of discipline and that, therefore, the Army Act and other pertinent laws must be treated as outside the scope of the 2018 judgment. Venugopal also told the Bench which also apart from Nariman included Justice Navin Sinha and Justice KM Joseph that, “Adultery can be defined as an ‘unbecoming act’ or punishable under “good order and discipline” rule under the Army Act. Such officers can be court martialled and cashiered. We thus want a clarification that the Constitution Bench judgment is not applicable to personnel of the armed forces.”

Needless to say, Venugopal also added that this clarification was required to obviate any counter-argument by an officer sought to be prosecuted that the armed forces were acting contrary to the Supreme Court’s verdict. Agreeing with the Attorney General, the Bench then responded that it was also of the prima facie view that the Indian Penal Code (IPC) and the Army Act or other laws governing navy and air force stood on different footings and therefore, even as adultery was no more an offence under the IPC, it could constitute an “unbecoming conduct” under the Army Act.

While adding a rider, the Bench then in the same vein also added that it was not competent to issue a clarification in this regard since the 2018 judgment was passed by a Constitution Bench of five Judges. The Bench also added further that, “This will have to be put up before the Constitution Bench.” Very rightly so!

Going ahead, the Bench then referred the matter to the Chief Justice of India for constituting a five-Judge Bench to examine the MoD’s application. It, however, issued a notice to the PIL petitioner in the case – Kerala-resident Joseph Shine who was represented in the court through advocate Kaleeswaran Raj. This was rightly considered necessary by the Apex Court.

To be sure, the MoD sought to highlight apart from what has been stated above that since the Supreme Court has decriminalized adultery, “there will always be a concern in the minds of the army personnel who are operating far away from their families under challenging conditions about the family indulging in untoward activity.”

Quite remarkably, what cannot be just glossed over is that while drawing a distinction between Section 497 in the IPC and the relevant laws in the armed forces, the MoD stated that unlike Section 497, the army laws did not make a difference between a male or a female and that it was a gender-neutral provision prosecuting soldiers of both the sexes for such acts.” Furthermore, the application stated that, “In other words, the army would equally proceed against a female subject to the Act, if she enters into an adulterous/illicit relationship.” It was also added that the laws governing the defence personnel were not discriminatory in nature.

Of course, it must be stated here that the Attorney General’s arguments in the Apex Court are based on inputs obtained from the defence ministry and the armed forces, army officials familiar with the case on the condition of anonymity. The officials very rightly added that adultery definitely amounts to conduct unbecoming of a soldier and those guilty have to be punished. There can be no denying or disputing it!

It goes without saying that the armed forces are hundred percent right in seeing adultery which implies “stealing the affections of a brother officer’s wife” as an offence that is just a notch below the worst offence an enlisted person can be accused of, cowardice. The provision to deal with this, drawn from Section 497, exists in all three services and the punishment is usually dismissal.

No doubt, the MoD very rightly underscored the necessity of retention of adultery as an offence for the defence personnel. It rightly maintained in simple and straight language: “That one has to remember that the Armed Forces exist in an environment wholly different and distinct from civilians. Honour is a sine qua non of the service. Courage, and devotion to duty, even at the risk of one’s lives, is part of the unwritten contract governing the members of the armed forces.”

As anticipated, it also relied rightly upon Article 33 of the Constitution to make a point that this provision allowed Parliament to restrict or modify operation of fundamental rights with regard to armed forces so as to ensure proper discharge of duties and maintenance of discipline. Looking from this prism too, the MoD said that its laws to govern defence personnel could not be held bad only because they abridged some of their fundamental rights.

While adding more to it, Additional Solicitor General Madhavi Divan who argued the Defence Ministry’s case in the top court very rightly remarked that, “I can only say that the armed forces require their own code of conduct in order to maintain discipline in the forces. The judgment striking down adultery is being applied to quash disciplinary proceedings in some cases. The provisions of the statutes which govern the armed forces permit disciplinary action in a manner different from the civilian population. That should be left intact and untouched.” Who can deny this?

It also certainly cannot be overlooked that another lawyer Chitrangada Rastravara pointed out that they were several actions which did not constitute an offence under the penal laws of India, but are punishable offences under the Army Act. She further rightly waxed eloquent to state that, “For example, desertion has no consequences under penal law; however it is a very serious offence, punishable by death under military law.”

It also cannot be denied that even woman officers want adultery law in the army and have pressed for retaining the criminality of adultery in the armed forces. Armed forces are always rightly expected to be most disciplined and it is imperative also as the security itself of our country depends on them! So let us fervently hope from now that a five Judge Bench of the Apex Court would soon be constituted and it would endorse the upright stand taken by the MoD on this key and sensitive issue! The ball is for now clearly in the court of the Apex Court. We have to keep our fingers crossed till the final verdict comes on this as it is for the Judges who have to finally decide on this as to what should be done finally!

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Legally Speaking

No need for a NOC to transfer flats built on land leased to the developer: SC

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Supreme Court

The Maharashtra government cannot require a “no objection certificate” from the collector in order to register the transfer of flats in cooperative societies built on land not provided directly by the state, the Supreme Court ruled last week.

The Court was hearing a petition filed by the state government challenging a decision issued by the Bombay High Court on September 29, 2009, which held that the state could not insist on payment of a premium and the issuance of a NOC for registering the transfer of plots when there is clear evidence that the land was allotted first to builders who built flats and then sold it to purchasers. Following that, the owners formed a cooperative society.

The HC decision was based on a petition filed by Aspi Chinoy, a senior advocate in Mumbai, and the Cuffe Parade Residents Association, who were residents of the 22-story Jolly Maker Apartments.

The top court bench of justices BR Gavai and BV Nagarathna dismissed the state’s appeal on Friday, “Since the land was not allotted to a society but to a builder on lease, who has constructed flats for private individuals, who have subsequently formed a Cooperative Society, the 1983 Resolution and 1999 Resolution would not be applicable to the members of such a society.”

The state had relied on two resolutions, dated May 12, 1983 and July 9, 1999, to levy a premium as a condition for granting permission for flat transfers.

The Resolution of 1983 provided for the grant of land at reduced rates to various categories of co-operative societies.

Following the 1983 Resolution, the government issued a modified resolution in 1999 that applied to co-operative societies to whom government lands were sanctioned at reduced rates.

Chinoy had approached the HC, questioning the resolutions’ relevance to their plot. He had challenged the collector’s letter of June 27, 2000 to the sub-registrar, Bombay City, Old Custom House, directing him not to register any transaction involving the transfer of flats in the buildings located in B.B.R. Block Nos. 3 and 5, Nariman Point and Cuffe Parade, Bombay, without first obtaining a NOC from the collector.

According to the residents, their building dates back to 1971, when the state government solicited bids for the lease of Plot Nos.93, 94, 99, 100, and 121 from Block V Back Bay Reclamation Estate. In response to the notice, M/s. Aesthetic Builders Pvt. Ltd. successfully won the bid and completed the construction of flats. On December 12, 1975, the building’s occupancy certificate was issued. Two years later, the owners established the Varuna Premises Cooperative Society Limited.

The bench said, “The present case is not a case where the land is allotted to a co-operative society by the government. The land was leased out to the builder, who was the successful bidder and after the ownership of flats was transferred to the private individuals, a society of the flat owners was formed.” The judges also lifted the stay on the refund order issued by the Supreme Court.

Chinoy claimed that the flat in which he lives was first sold to A Madhavan in 1972 and then to Reshmidevi Agarwal in 1978.

Chinoy then entered the picture by signing an agreement with Agarwal in December 2020 in exchange for five shares in the society.

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Seeking centre’s response on plea for digitisation of medico-legal documents: Madras High Court

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The Madras High Court in the case Dr. Mohamed Khader Meeran A.S v. State of Tamil Nadu observed and has recently sought the response of the Central and the State government on a plea seeking computerisation of medical records having legal importance, including postmortem report, injury report/ accident, etc.
The bench comprising of Chief Justice T Raja and Justice D Krishnakumar heard the case.
It was submitted by the petitioner, Dr Mohammed Khader Meeran that Medico Legal Examination and Postmortem Reporting (MedLeaPR) is a software developed by the National Informatics Centre (NIC) to issue various medico-legal reports and certificates digitally and to store the data in cloud storage in the encrypted form. Presently, the software is being used by many states and union territories in the country.
It was also directed by Madras High Court to implement this software in the state of Tamil Nadu by January 1st 2021. Thus, even though more than an year has passed, no effort has been made by any authority to implement the same, it was averred. The petitioner added that there is no standard proforma that exists in the State.
It was also contended by him that the present proforma is not at all at par with the standards prescribed by the Supreme Court in the case Samira Kohli Vs Dr. Prabha Manchanda And Anr., Civil Appeal No.1949 of 2004.
Further, the petitioner also submitted that documents like Injury Report, Post-Mortem Report (including viscera/chemical analysis report), report of examination after Sexual assault, age estimation reports have legal importance. However, if these are computerised, it would increase the efficiency of hospital administration, governments and the judiciary also.
The petitioner seek directions from the court to implement this software in all the Government hospitals.

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Bail can’t be cancelled without giving notice to accused, giving him an opportunity of being heard: Allahabad High Court

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The Allahabad High Court in the case Rajendra Kumar and 2 Others v. State Of U.P. Thru Prin Secy Home And Another observed that the cancellation of bail cannot be done without giving notice to the accused and giving him an opportunity of being heard.
The bench comprising of Justice Ajai Kumar Srivastava-I observed and has set aside the order of the Sessions Judge, Raebareli cancelling the bail granted earlier to Rajendra Kumar and 2 others in connection with a criminal case.
It was noted by the High Court that the impugned order cancelling the bail was passed without issuing notice to the accused/applicants and without affording them a reasonable and sufficient opportunity of hearing and the same was patently illegal being in flagrant violation of the rulings of the Supreme Court.
With this regard, it was also referred by the court to Apex Court’s rulings in the cases of Samarendra Nath Bhattacharjee vs. State of W.B. and another case of (2004) 11 SCC 165, Mehboob Dawood Shaikh vs. State of Maharashtra (2004) 2 SCC 362, and the case P.K. Shaji alias Thammanam Shaji vs. State of Kerala.
In the present case the accused/applicants were granted bail vide by the Sessions Judge, Raebareli on November 22, 2021. Later, the court was informed that the accused allegedly threatened the witnesses and the complainant to desist from prosecuting the case after being granted bail.
The court finds that the aforesaid conduct of the applicants was violative of the conditions of bail subject to which they were enlarged on bail, it has been directed by the trial court that the applicants be taken into custody and also passed the impugned order cancelling the bail granted to the applicants.
The Applicant challenging the order, moved the Court arguing that in this case and their bail was cancelled without giving them any opportunity of being heard.
The court noted that it is a settled law that once bail has been granted by a competent court after due consideration of the facts and circumstances of the case and the same should not be cancelled in a mechanical manner without there being any supervening circumstance(s) which are not conducive to the fair trial.
However, it was not made clear by the court that trial court would be at liberty to issue notice to the applicants stating therein the grounds which are to be considered by it for cancellation of bail being granted to the applicants.

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Dispute Of Unregistered Partnership Firm Can Be Referred To Arbitration, Bar U/S 69 Partnership Act Not Applicable

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The Calcutta High Court in the case Md. Wasim and Another v. M/S Bengal Refrigeration and Company and Others observed while hearing an application filed under Section 11 of the Arbitration and Conciliation Act, 1996 (‘Arbitration Act’) for appointment of an arbitrator to resolve the dispute between the parties, wherein it was held that the bars for instituting a suit or any other proceeding under Section 69 of the Indian Partnership Act, 1932 (‘Partnership Act’) shall not be applicable to arbitral proceedings under Section 11 of the Arbitration Act.
The present case of the applicants was that, although unregistered, a partnership deed was executed between the applicants and the respondents containing an Arbitration Clause mandating the referral of all disputes and questions to a person who ahs been appointed unanimously to act as an arbitrator.
However, a dispute arose between the parties, subsequent to which, the applicants sent a notice to the respondents invoking the arbitration clause and proposing the name of an advocate as sole arbitrator to resolve the dispute. The respondent denied the appointment of an arbitrator alleging that the allegations raised by the applicants in their initial notice were false. The applicants filed the application under Section 11 of the Arbitration Act for appointment of an arbitrator, aggrieved in these circumstances,
The application was filled by the applicants and it was argued by the respondents that since the partnership firm was ‘unregistered,’ the dispute could not be referred to an arbitrator in view of the application of and the bar created by Section 69 of the Partnership Act, 1932. Further, their case was that since sub-sections (1) and (2) read with sub-section (3) of Section 69 of the Partnership Act restrict the filing of suit by any person as a partner of an unregistered firm including by means of a claim under ‘other proceedings,’ the appointment of an arbitrator could not be seek by the applicant, the partnership deed in their case being ‘unregistered.’
It was observed that Chief Justice Prakash Shrivastava relied on the Supreme Court decision in Umesh Goel v. Himachal Pradesh Cooperative Group Housing Society Limited and on the Madras High Court decision in the case M/s. Jayamurugan Granite Exports v. M/s. SQNY Granites, wherein both of which held that arbitral proceedings shall not come under the expression ‘other proceedings’ of Section 69(3) of the Partnership Act, 1932 and that the ban imposed under Section 69 can have no application to arbitration proceedings and as well of the arbitral award under Section 11 of the Arbitration Act.
Accordingly, it was held by the Calcutta High Court that non-registration of the partnership firm would not attract the bar under Section 69 of the Partnership Act, so far as institution of proceedings as stated under the provision of Section 11 of the Arbitration Act is concerned.

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Supreme Court: Terms Of Invitation To Tender Are Not Open To Judiciary Scrutiny Unless They Are Arbitrary, Discriminatory Or Mala Fide

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The Supreme Court in the case Airports Authority of India versus Centre for Aviation Policy observed that the terms of invitation to tender are not open to judicial scrutiny, the top court has set aside a Delhi High Court’s order which had quashed the Airport Authority of India’s tender conditions for selecting Ground Handling Agencies (GHA) agencies at Group D Airports.
The bench comprising of Justice MR Shah and the Justice Krishna Murari observed and has stated that the Delhi High Court committed a “serious error” by entertaining a writ petition at the instance of a third party- an group of advocacy called Centre For Aviation Policy -when none of the GHAs challenging the tender conditions. Thus, the writ petition should have been dismissed on the ground of locus standi (Airports Authority of India versus Centre for Aviation Policy).
The court observed that in view of the matter, it is not appreciable how respondent No.1 (CAPSR) – original writ petitioner being an NGO would have any locus standi to maintain the writ petition, wherein challenging the tender conditions in the respective RFPs. Respondent No.1 cannot be said to be an aggrieved party in the case.
The Court stated that the even on merits, the High Court should not have interfered with the tender conditions, observed the Supreme Court. While referring to various precedents regarding limited scope of judicial interference in tender conditions
Further, the court stated that as per the settled position of law, the terms and conditions of the Invitation to Tender are within the domain of the tenderer/tender making authority and are not open to judicial scrutiny, unless they are arbitrary, discriminatory or mala fide and as per the settled position of law, the terms of the Invitation to Tender are not being open to judicial scrutiny and the same being in the realm of the contract. The Government/tender/tenderer making authority must have a free hand in setting the terms of the tender.
The bench observed and has stated that the court cannot interfere with the terms of the tender prescribed by the Government because it feels that some other terms in the tender would have been wiser, fair, or logical.
It was observed that the AAI approached the Supreme Court against the order of the High Court dated July 14, 2021, by which it has allowed the said writ petition of the NGO and has struck down the decision to carry out region-wise sub-categorisation of the 49 airports falling under Group D-1 and the stipulation that only the previous work experience in respect of providing the GHS to scheduled aircrafts shall be considered and will be acceptable. It was also found by the High Court that the revised minimum Annual Turnover criteria of INR 18 crores as discriminatory and arbitrary.
Accordingly, the Supreme Court noted that the AAI explained before the High Court the rationale behind the respective conditions, namely, clustering of 49 airports into 4 region-wise sub-categories/clusters; criteria for evaluation of 36 months having experience in the past 7 years in providing 3 out of 7 Core GHS and the financial capacity and an Annual Turnover of Rs. 30 crores (modified as Rs. 18 crores) in any of the one of last three financial years.
The court stated that while having gone through the respective clauses/conditions which are held to be arbitrary and illegal by the High Court, the court is of the opinion that the same cannot be said to be malafide or/ arbitrary and/or actuated by bias. However, it was for the AAI to decide its own terms and fix the eligibility criteria.

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Court sends Waqf Board scam co-accused to 14 day judicial custody

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A Delhi court on Monday remanded Kausar Imran Siddiqui alias Laddan, co-accused in Delhi Waqf board scam case, to 14 days custody.  

AAP MLA Amanatullah Khan is the primary accused in the case and is out on bail. The Anti-Corruption Bureau (ACB) has stated that Laddan is a fund manager for Khan. The Duty Sessions Judge at Rouse Avenue Court also expressed its displeasure over the non-presence of ACB on the previous date.  

ACB had submitted to the court Ladan’s “handwriting sample” and sought 7 days of custody for him.

The court observed that the agency had not given any reasonable answer for its absence on previous occasion. Thereafter, he was sent to 14 day judicial custody.

AAP MLA was arrested for alleged irregularities in appointment in Delhi Waqf Board during his chairmanship.
Accused Kausar Imran Siddiqui alias Laddan was produced on a production warrant before the court on 27th September. He was interrogated and arrested with the permission of the court.

Laddan’s name came into the frame, when additional public prosecutor Anil Srivastava opposed Khan’s bail plea. He stated that a diary was recovered from Ladan’s house.  It was alleged that he was Khan’s fund manager.  Earlier, the (ACB) had said that money was sent to Dubai and other money transactions need to be investigated. It also stated that a large amount of money was transferred to a party via Dubai. There were 100 people who either received or paid money to Laddan. Out of these 37 people have transactions of crores of rupees.                                                                                                                                                                          

This diary also has an entry about one Zeeshan Haider, who received crores of rupees. He is also a close associate of the accused, ACB had argued. The ACB has also submitted that Laddan is a nominated functionary of a political party. He has photographs with the accused during an iftar party. Additionally, 14 crores sale deed is recovered, which is said to be a ‘Benami property’.

Previously, Ladan was in judicial custody in another case lodged at Jamia Nagar police station. He was arrested from Telangana.

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