superme court Archives - Lokmarg

Thousands Can’t Be Uprooted Overnight: SC On Eviction In Haldwani

By LokMarg 5th January 2023

Thousands can’t be uprooted overnight, the Supreme Court on Thursday said while putting a stay on the Uttarakhand High Court’s decision ordering the State authorities to remove encroachments from railway land in Haldwani’s Banbhoolpura area.

A bench of Justices Sanjay Kishan Kaul and Abhay S Oka issued notices to the Indian Railways and Uttarakhand government on the pleas.
“There cannot be uprooting of 50,000 people overnight,” said the bench, adding that there has to be segregation of people who have no right on the land and the need for rehabilitation while recognizing the need for railways.

Noting that people are living there for decades, the bench said there should be measures for rehabilitation since the issue involves a human angle.

Posting the case for hearing on February 7, the bench said that it has put to the Additional Solicitor General Aishwarya Bhati that full rehabilitation of the persons in the area is needed.

“Issue notice. In the meantime, there shall be a stay of the directions passed in the impugned order. There should also restrain any more construction or development on the land,” said the bench in its order.

During the hearing, the apex court said, “What is troubling us is how do you deal with a situation where people bought the land in the auction and took possession after 1947 and acquired title. You (railways) may acquire the land but what to do now? People live for 60-70 years some rehabilitation has to be done. There must be a culmination to the issue and we do not encourage what is going on.”

ASG Bhati for Indian Railways said that this strip of land belongs to the railways. Their claim is that it is their land, they are not asking for rehabilitation.

The top court said that maybe all of them cannot be painted with the same brush, and there may be different categories. “But there are people for whom a human angle needs to be considered. Someone will have to examine their documents,” it added.

Bhati said that Kathgodam Railway station does not have any space for expansion and there are 4365 unauthorized occupants.

The Uttarakhand High Court had on December 20 ordered the removal of encroachments from railway land in the Banbhoolpura area of Haldwani after giving notice to the residents one week in advance.

Led by Congress MLA from Haldwani, Sumit Hridayesh, residents of the area approached the Supreme Court on Monday challenging the High Court’s order. Another petition was also filed through advocate Prashant Bhushan.

A total of 4,365 encroachments will be removed from the area. Those facing eviction have been living on the land for many decades.

Residents have been protesting against the removal of encroachments from railway land in compliance with a High Court order.

The petition highlighted that the petitioners are poor people who have been lawful residents of Mohalla Nai Basti, Haldwani district for more than 70 years.

The petition stated that the names of local residents are entered in the municipal records of the house tax register and that they have been paying house tax regularly for years.

There are five government schools, one hospital, and two overhead water tanks in the area. It is further stated that “the long settled physical possession of the petitioners and their ancestors, some even prior to the date of Indian independence, has been recognized by State and its agencies and they have been given gas and water connections and even Aadhaar card numbers accepting their residential addresses.” (ANI)

Varanasi Court To Decide On Shivling In Gyanvapi Today

By LokMarg 14th October 2022

A Varanasi court is expected to deliver its verdict on Friday on the Hindu side’s plea seeking carbon dating of the purported ‘Shivling’ claimed to be found in the Gyanvapi mosque complex.

The Hindu side had claimed that a ‘Shivling’ was found in the premises near the ‘wazukhana’ during the videography survey of the mosque premises, which was ordered by the court. However, the Muslim side said that the structure found was a ‘fountain’. The Hindu side had then submitted an application on September 22 that sought a carbon dating of the object they claimed to be ‘Shivling’.
Carbon dating is a scientific process that ascertains the age of an archaeological object or archaeological finds.

Speaking to ANI, Vishnu Jain, representing the Hindu side said, “The Muslim side said that Shivling is not a part of the suit property and its carbon dating cannot be done. We have given our clarification on both of these points. The court will deliver its verdict on October 14.”

Earlier on September 29, the Hindu side demanded a scientific investigation of the ‘Shivling’ by the Archaeological Survey of India (ASI) and the carbon dating of ‘Argha’ and the area around it.

The court had reserved the order in the Gyanvapi Mosque-Shringar Gauri case after hearing both sides’ arguments.

Akhlaq Ahmed, representing the Muslim side had said that the plea by the Hindu side is not maintainable as it is against the order of the Supreme Court that stated protecting the structure (which the Muslim side claims to be a fountain and the Hindu side claims to be a Shivling).

“We responded to the application on carbon dating. Stone does not have the capacity to absorb carbon. The Supreme Court in its May 17 order, according to which, the object that was found by the commission, had to be protected. The order of the SC will prevail, so the object cannot be opened. According to the Hindu side, the process will be scientific, even if it is so, there will be tampering with the object. Chemicals will be used for the test. We will take action based on the order by the court on October 14,” Ahmed told ANI.

Another lawyer representing the Muslim side, Tohid Khan said, “The court will deliver its verdict on whether the application seeking carbon dating is acceptable or should be rejected. The structure is a fountain and not Shivling. The fountain can still be made operational.”

Earlier, an appeal had been filed in the Supreme Court challenging the order of the Allahabad High Court which had dismissed a PIL that sought the appointment of a committee/commission under a judge to study the nature of the structure found in the Gyanvapi Mosque, Varanasi.

The appeal filed by seven devotees sought direction from the Archeological Survey of India (ASI) to ascertain the nature of the structure found on the Gyanvapi campus.

The Allahabad High Court had on July 19 dismissed their plea seeking the appointment of a committee/commission headed by a judge of the High Court or supreme court (sitting/retired) to study the nature of the structure found in the Gyanvapi Mosque.

The PIL moved before the High Court seeks direction from a committee to ascertain whether a Shivaling, as claimed by the Hindus, had been found inside the mosque or if it is a fountain as claimed by Muslims.

The appeal in the top court stated that the Allahabad High Court had erred in dismissing the plea.

On May 20, the Supreme Court ordered the transfer of the case related to worship at Gyanvapi mosque from the civil judge to the District Judge, Varanasi. (ANI)

Bar Association Seeks 5 Judges Bench For Hizab Issue

By LokMarg 13th October 2022

The All India Bar Association (AIBA) has requested Chief Justice of India (CJI) UU Lalit that the Hijab issue be referred to a larger bench of a minimum of five judges including one Muslim judge in the Supreme Court after split judgments on this issue by the two judges today.

In a letter to CJI, Dr. Adish C Aggarwala, Senior Advocate and Chairman of AIBA, has pointed out that the then Chief Justice NV Ramana has erred in constituting the bench which included Justice Hemant Gupta who was to retire on October 16, 2022, and Justice Sudhanshu Dhulia who was recently appointed to Supreme Court on May 9, 2022.
“I may point out that judges were not having a reasonable time to adjudicate the issue as it is evident from the fact that Justice Sudhanshu Dhulia’s main thrust of his judgment is that the concept of ‘essential religious practice’ was not essential for the disposal of the dispute,” said Aggarwala.

Senior Advocate Aggarwala further quoted the Supreme Court judgment stating, “Justice Dhulia said in his judgment that ‘The court (High Court of Karnataka – added for clarification) probably took the wrong path. It was simply a question of Article 19(1)(a), its applicability, and Article 25(1), primarily. And it’s ultimately a matter of choice, nothing more or nothing less.”

He said that due to a shortage of time, it has been overlooked by Justice Sudhanshu Dhulia that Muslim students, in Karnataka High Court took the plea that the “Hijab is part of the essential religious practice in Islamic faith”.

“Justice Dhulia took a diametrically opposite view and struck down the High Court verdict. I was fully aware that the present Bench will be not in a position to adjudicate the issue due to shortage of time, I have not intervened in the matter in Supreme Court although I intervened before the High Court of Karnataka”, said Dr. Aggarwala, who was also Vice Chairman of Bar Council of India and Supreme Court Bar Association.

He further urged CJI to refer the matter to a larger bench of the Supreme Court.

“In the fairness of the matter, it is humbly prayed that the Hijab matter is referred to a larger bench of 5 senior Judges including one Muslim Judge in the Supreme Court as this issue is the most important matter for all citizens of India,” he said.

He also suggested that while constituting the Bench, it should be advised to hold a day-to-day hearing.

“If Justice S Abdul Nazeer declines to be in the Bench, then CJI should mention this fact in the order constituting the larger bench to hear the Hijab matter. While constituting the Bench, the Bench be advised to hold a day-to-day hearing as Justice Nazeer is to retire on January 4, 2023. The world is watching the Supreme Court of India as it is a torch bearer in protecting India’s democracy, states a press statement issued by AIBA.

A two-judge bench of Justices Hemant Gupta and Sudhanshu Dhulia pronounced the judgment today.

While Justice Hemant Gupta stated that was a “divergence of opinion” as he dismissed the bunch of petitions against the March 15 Karnataka High Court order on the hijab matter, Justice Sudhanshu Dhulia allowed the appeals and set aside the HC verdict.

“It’s a matter of choice, nothing more nothing less,” Justice Dhulia said while pronouncing the order.

Justice Gupta said, “There is a divergence of opinion. In my order, I have framed 11 questions. First is whether the appeal should be referred to the Constitution Bench.”

Advocate Ezaz Maqbool, representing the petitioner said that the matter would be placed before the Chief Justice of India and he would decide whether a new bench would hear the matter or the case gets referred to a larger bench.

The apex court had earlier reserved its order on various petitions challenging the Karnataka High Court upholding the ban on hijab in educational institutes.

The arguments in the matter went on for 10 days in which 21 lawyers from the petitioners’ side and Solicitor General Tushar Mehta, Additional Solicitor General KM Nataraj, Karnataka Advocate General Prabhuling Navadgi argued for the respondents.

The court was hearing various pleas challenging the Karnataka HC’s judgment upholding the Karnataka Government’s decision to direct educational institutes to prescribe uniforms in educational institutes.

One of the appeals in the top court had alleged “step-motherly behavior of government authorities which has prevented students from practicing their faith and resulted in an unwanted law and order situation”.

The appeal said the High Court in its impugned order “had vehemently failed to apply its mind and was unable to understand the gravity of the situation as well as the core aspect of the Essential Religious Practices enshrined under Article 25 of the Constitution of India”.

A bench of Karnataka High Court comprising Chief Justice Ritu Raj Awasthi, Justice Krishna S Dixit, and Justice JM Khazi had earlier held that the prescription of uniform is a reasonable restriction that students could not object to and dismissed various petitions challenging a ban on hijab in education institutions saying they are without merit.

The hijab row erupted in January this year when the Government PU College in Udupi allegedly barred six girls wearing the hijab from entering. Following this, the girls sat in protest outside the college over being denied entry.

After this, boys from several colleges in Udupi started attending classes wearing saffron scarves. This protest spread to other parts of the state as well leading to protests and agitations in several places in Karnataka.

As a result, the Karnataka government said that all students must adhere to the uniform and banned both hijab and saffron scarves till an expert committee decided on the issue.

On February 5, the pre-University education board released a circular stating that the students could only wear the uniform approved by the school administration and that no other religious attire would be allowed in colleges. (ANI)

Hate Speech: SC Asks Why Govt Is A Mute Spectator

By LokMarg 21st September 2022

The Supreme Court on Wednesday asked why the government was remaining a mute spectator to hate speech and also pulled up mainstream TV news channels for holding debates that often give space for hate speech.

A bench of Justices KM Joseph and Hrishikesh Roy said the role of anchor in the TV channel debate is “very important” and “critical” and observed that it’s their duty to ensure that guests invited to the show don’t indulge in hate speech.

The bench also said that TV channels which often give space to hate speech escape without any sanctions.

“Role of the anchor is very important. These speeches are on mainstream media or social media that is unregulated. Mainstream TV channels still hold sway. The role of the anchor is critical. The moment you see somebody going into hate speech, it is the duty of anchor to immediately see that he doesn’t allow that person,” said Justice Joseph.

The apex court was hearing a batch of pleas seeking direction for steps against hate speech incidents.

The bench further said that hate speech benefits politicians the most and TV news channels give platforms for hate speech.

Senior advocate Sanjay Hegde appearing for one of the petitioners in the case also agreed with the bench and said, “Channels and politicians feed on such speech. Channels get money. They keep ten people in debates.”

“You should be communicating what others are saying not what you want to say. Pillars of democracy are supposed to be independent and not take orders from anyone,” the bench said.

The bench said, “If sanctions are effected this will go… Any anchor will have his own views, but what is wrong is when you have people of different views and you are not allowing them to express those views… in doing that you are bringing hate and your TRP is going up.”

The bench further observed that freedom of the press is important and ours is not as free as the US but we should know where to draw a line.

Citing an instance, Justice Joseph said that one news channel was fined heavily in the United Kingdom.

“We don’t have that here. They (news channels) are not being dealt with firmly. They can be taken off air, fined, if such sanction comes….” Justice Joseph opined.

Hegde told the bench that on Tuesday, US President Joe Biden said that we cannot give hate oxygen.

To this, Justice Joseph responded, “Not one bit. We cannot give hate any air.”

The top court further added that nowadays nobody reads because of the paucity of time, but visual media has a power that has been recognised by this court in censorship cases.

During the hearing, the bench asked why the Central government was remaining a “mute spectator” on the hate speech issue.

“What’s the problem? Why government of India not taking a stand? Why is the government remaining a mute spectator?” asked the bench from Additional Solicitor General KM Nataraj.

Government should not take an adversarial stand on this but assist the court, Justice Joseph said.

Nataraj, representing the Centre, told the bench that 14 states have filed their responses. The apex court asked the Centre to also file a response collating the State government’s inputs.

In July this year, the top court had directed the Centre to prepare a detailed chart outlining States’ compliance with the general directions issued by it in the judgments relating to curbing hate speech. (ANI)

CJI Lalit Refutes Reports Of Rift Among Top Judges

By LokMarg 15th September 2022

Chief Justice of India (CJI) UU Lalit refuted any rift among judges of the Supreme Court in relation to the new listing system of cases on Thursday, and said that “all judges are on the same page”.

“We have taken a new way of listing. What has been reported is not the correct state of affairs. All Judges are completely on the same page,” CJI Lalit said in the felicitation function organised for him by the Supreme Court Bar Association.

The CJI elaborated that the new listing system was a work in progress that has shown promise by disposing of 5200 cases since its introduction.

Earlier on Wednesday, Justice Sanjay Kishan Kaul remarked that the new listing system does not give adequate time to take up matters fixed for hearing. The bench, also comprising Justice Abhay Oka, said that many cases cannot be taken up as there are a number of matters within the span of the ‘Afternoon’ session.

“The new listing system is not giving adequate time to take up matters fixed for hearing like the present case as there are a number of matters within the span of ‘Afternoon’ session,” the order passed by the bench of Justice Kaul had said.

CJI Lalit, while addressing the gathering, said that till yesterday, the apex court could dispose of 5200 matters as against the filing of 1135 cases.

“As a result of change over, there have been certain instances where matters were listed on the 11th hour. Difficult for judges, indebted to them for discharging everything with a smiling face. That’s how we were able to dispose of 5200,” he said.

We have been able to reduce the arrears by 4000, CJI said terming it a good beginning. “So many matters were pending and had become infructuous. So we had to dispose of them and the results are before you,” CJI added.

After assuming the office of CJI, one of the first changes introduced by CJI Lalit was regarding the hearing of cases in the top court on non-miscellaneous days (Tuesdays, Wednesdays, and Thursdays). As per this, on non-miscellaneous days, the apex court currently hears regular matters in the morning session (10.30 am to 1 pm) and miscellaneous and after notice matters in the afternoon session (2 pm to 4 pm).

Earlier, the norm was to take up miscellaneous matters first and then proceed to the regular hearing.

CJI also said that it was always his dream to become a judge of the Supreme Court.

“It’s a privilege to be a lawyer. Everything I am today is a because of this legal profession. I can’t consider myself to be anything other than this profession. Being a member of this bar association was a matter of privilege,” CJI further said.

Attorney General (AG) KK Venugopal also attending the felicitation ceremony said that he was happy to have a CJI of “unquestionable integrity and calm” who doesn’t raise his voice whatever may be the provocation.

“We are all happy that one among us, who is a member of the Supreme Court Bar Association, is holding the highest judicial office in the country. Only a few among us have had the privilege of being directly elevated to the bench of the Supreme Court of India. We are additionally happy that we are having a Chief Justice of India of unquestionable integrity,” AG said.

“If the last two and half weeks of Justice Lalit’s tenure have shown us anything it is that he is committed to planting a seed of lasting change and that his tenure offers a great future for this institution,” AG further said. (ANI)

BCCI Allowed To Amend Its Constitution On Tenures Of Office Bearers

By LokMarg 14th September 2022

The Supreme Court on Wednesday allowed the Board of Control for Cricket in India (BCCI) to amend its constitution relating to the cooling-off period for the president and secretary, among other office-bearers.

This amendment may enable board President Sourav Ganguly and secretary Jay Shah to have longer tenures in the BCCI.
The Supreme Court was hearing the matter of changing BCCI rules relating to the “cooling off” period for the president, secretary, and other office bearers.

A bench of Justices DY Chandrachud and Hima Kohli allowed BCCI to amend its constitution. “We are of the considered view that the amendment would not dilute the original objective. We accept the proposed amendment,” the bench said.

“Amendment proposed by BCCI does not detract from the spirit of our original judgment and is accepted,” it said.

BCCI had sought permission to change the rules relating to the “cooling off” period for the President, secretary and other office bearers. The petition also sought a direction for the extension of the tenure of BCCI President, Sourav Ganguly and Secretary Jay Shah. The petition was filed in 2020.

The Board of Control for Cricket in India (BCCI), earlier moved the Supreme Court seeking an urgent hearing on a plea for approval to amend six rules of the board’s constitution.

The tenure of Sourav Ganguly as BCCI president and Jay Shah as BCCI secretary is set to expire in September 2022.

In 2019, the General Body of the BCCI during an AGM on December 1, 2019, proposed six amendments, including one in Rule 6 of the Constitution, which had barred BCCI and state board office bearers from holding office for more than six consecutive years.

According to the current rules, any person who has been an office bearer in the BCCI or state cricket body, or any combination, has to undergo a mandatory 3-year “cooling off period” following a maximum six-year term in office.

During this period, they cannot hold office in either a state body or in the BCCI. This would effectively bar the current office bearers of the BCCI from holding any posts either in the BCCI or any state board, for the next three years.

Before his appointment to the BCCI, Ganguly had served as president of the Cricket Association of Bengal (CAB) from 2014, while Jay Shah was an office bearer in Gujarat Cricket Association (GCA) since 2013. (ANI)