- Apprentice Lawyer
Crucial Judgments by the Allahabad High Court in 2020 on free speech, personal liberty and more
The Allahabad High Court stepped in to deliver some powerful decisions in 2020, which came as a ray of hope for many individuals.
This year has been one of the most challenging phases for the judiciary, not only because it shifted to a virtual space, but also since it had to take up many matters of Constitutional importance and personal liberty. The Allahabad High Court stepped in to deliver some powerful decisions in 2020, which came as a ray of hope for many individuals.
Inter-faith marriages and the right to choose a partner
The High Court came to the aid of an inter-faith couple. In this case, a woman was confined by her family in a Juvenile Centre against her wishes. The High Court observed that she is already an adult and has the right to choose her partner.
“As the corpus has attained the age of majority and she has a choice to live her life on her own terms and she has expressed that she wants to live with her husband Salman (Karan) she is free to move as per her own choice without any restriction or hindrance being created by third party,” the Court held ordering that she be released.
In this case, the Court, while upholding the right to privacy of an individual, granted interim protection to a man who was charged under the controversial UP Conversion ordinance. The Court observed that Article 25 of the Indian Constitution guarantees freedom of religion and freedom to profess/propagate one’s faith.
“There is no material before us that any force or coercive process is being adopted by the petitioner to convert wife of the informant. Victim is admittedly an adult who understands her well being. She as well as the petitioner have a fundamental right to privacy and being grown up adults who are aware of the consequences of their alleged relationship,” the Court added.
In this case, the Court was constrained to reiterate that the right of an individual to live with a person of his/ her choice irrespective of religion is a fundamental right. The Petitioner had approached the High Court against an FIR filed by the father of his wife under Sections 363, 366, 352 and 506 of the Indian Penal Code and Sections 7 and 8 of the POCSO Act. The Court set aside all the charges framed against the Petitioner, adding that it refuses to reduce the petitioner and his wife to their religion alone.
“We do not see Priyanka Kharwar and Salamat as Hindu and Muslim, rather as two grown up individuals who out of their own free will and choice are living together peacefully and happily over a year. The Courts and the Constitutional Courts in particular are enjoined to uphold the life and liberty of an individual guaranteed under Article 21 of the Constitution of India. Right to live with a person of his/her choice irrespective of religion professed by them, is intrinsic to right to life and personal liberty. Interference in a personal relationship, would constitute a serious encroachment into the right to freedom of choice of the two individuals,” the Court ruled.
The Allahabad High Court pointed out that while live-in relationships were not socially accepted in India, they do not amount to any offence in law. The Court, thereby, affirmed that two consenting adults are at liberty to live together and that no person would be permitted to interfere in their peaceful living.
"Live-in relationship between two consenting adults of heterosexual sex does not amount to any offence even though it may be perceived as immoral”, the Court said.
Right to shelter and rehabilitation
In this case, the High Court, while upholding the ‘right to shelter and rehabilitation, directed the Ghaziabad Authority to restrict itself from any further demolition of certain slums.
“In view of the Proviso aforesaid, prima-facie we are satisfied that the GDA should have offered a place to rehabilitate the residents of Bhovapur Basti before their eviction and the demolition of their houses. It would also be appropriate to state that when the entire globe is facing a pandemic, it is the responsibility of the State to protect everyone, more specifically the population of weaker sections from any hardship that may aggravate their plight adversely,” the Court observed.
Justice for the weaker sections
In this case, the Court rebuked the authorities for paying below average wages to cooks who have been working as part of the ‘Mid-day meal’ scheme within the State. The Court acknowledged the plight of the weaker sections of the society and, while granting relief, it directed:
“The State Government and the Union of India are further directed to take steps for issuance of directions fixing the rate prescribed under the Minimum Wages Act, as the wages which would be payable to the cooks employed for providing mid-day-meal in the Institutions run by the Government or the Semi-Government bodies, the respective Governments may work out their payment obligations in consultation with each other, however, it shall be ensured that the cooks are not paid wages less than the minimum prescribed under the Minimum Wages Act, in any case. It is clarified that this order shall operate to the benefits of all the cooks employed who provide mid-day-meal whether they have approached this Court or not or whether they approach the Government by filing a separate application or not.”
While acknowledging the condition and poor health facilities available for migrant workers amid the pandemic, the Court directed the State government to provide facilities to the workers and file a status report reflecting the steps taken to accommodate and help the workers.
“We direct the learned counsel for the respondents to file status report by way of an affidavit in the matter in issue by the next date of listing indicating therein that what facilities have been provided to the workers/laborers who are keen to reach their native place in the State of U.P., some of which are on the way as also to the stranded workers/labourers in the State of UP,” the order read.
The Court also asked the State to come up with a policy to provide medical aid and rehabilitation to migrant workers in a PIL moved for the enforcement of the fundamental rights of migrant workers amid COVID-19 (Ritesh Srivastava And Another v. State of UP).
Name change a fundamental right
The Court was dealing with a case where the Petitioner sought to change his name in official records, but faced resistance from the CBSE when it came to his school records. The Court, while directing CBSE to carry out the name change, observed that:
"The freedom of expression as guaranteed under Article 19(1) (a) includes within its sweep all forms of expressions and name in the present world is clearly a strong expression."
Recital of Azan through loudspeakers not a fundamental right
In this case, High Court held that while the recital of Azan is a fundamental right, using of loudspeakers for the recitation is not. The Court was approached challenging guidelines issued amid COVID-19 to restrict the recital of Azan. The Court observed:
"We fail to understand as to how the recital of Azan by a single person in the mosque i.e. Muezzin/Imaam or any other authorised person, through human voice without using any amplifying device, asking the Muslims to offer prayer and that too without inviting them to the mosque, can be violative of any guidelines. Merely reciting of Azan from the mosque through human voice does not cause any health hazards to any person of the society,"
Where the Allahabad High Court extended suo motu aid
The Etah Incident: Police atrocity against lawyer
The Court took cognisance of a video doing rounds on social media which showed an Etah-based lawyer being beaten and thrashed by Policemen in uniform. The Court has now ordered the authorities to file a report so it can examine the incident further.
Public health and COVID-19
A bench led by Chief Justice Govind Mathur took suo motu cognizance over the unhygienic conditions at COVID-19 quarantine centres in the State. The Court also referred to news reports which indicated that hospitals were not catering to non-COVID patients. The Court denied to keep the PIL pending to monitor the situation going forward since it was not aware of the preparedness of the State.
The High Court took suo motu cognizance of the plight of the prisoners who have not been released amid COVID-19 due to the non-availability of sureties. The Court directed the release of such prisoners on the execution a personal bond.
Expressing concern over the plight of minor girls in Chitrakoot, UP the Court took suo motu cognizance, on the basis of a news report by India Today. While directing the authorities to look into the matter, the Court said the following:
“It is stated that in district Chitrakoot minor girls have been forced to enter immoral activities against meagre wages. Serious allegations have also levelled pertaining to violation of Child Labour (Prohibition and Regulation) Act, 1986. Having considered the material available on record, we deem it appropriate to direct the District Magistrate, Chitrakoot and the Chairman, District Legal Services Authority, Chitrakoot to inquire into the entire matter as referred in the report given by India Today Magazine”
Name and Shame posters: A direct violation of Right to privacy
A bench led by Chief Justice Govind Mathur, took suo motu cognizance over the ‘Name and Shame’ posters put up by the Uttar Pradesh administration displaying images of those alleged to have participated in CAA-NRC protests at Lucknow. The court came down heavily on the State government and stated that it is an "unwarranted interference in privacy.” In such matters, the Court need not wait for a person to come before it to ring the bell of justice, it added. The Courts are meant to impart justice and no court can shut its eyes if a public unjust is happening just before it, the Bench remarked.
"In the present case, the cause is not about personal injury caused to the persons whose personal details are given in the banner but the injury caused to the precious constitutional value and its shameless depiction by the administration. The cause as such is undemocratic functioning of government agencies which are supposed to treat all members of public with respect and courtesy and at all time should behave in manner that upholds constitutional and democratic values,” the order further read.
The Hathras Rape Case
Expressing shock over the pre-dawn cremation of the victim in the Hathras gang rape, the High Court took suo motu cognisance in the matter, observing:
"As it is, the deceased victim was treated with extreme brutality by the perpetrators of the crime and what is alleged to have happened thereafter, if true, amounts to perpetuating the misery of the family and rubbing salt in their wounds."
The case is presently being investigated by the Central Bureau of Investigation (CBI), which has filed a charge-sheet before a Special Court in Lucknow, Uttar Pradesh. The Lucknow Bench of Allahabad High Court, which is monitoring the case, recently decided to watch audio visual material on the next date, i.e. January 16, 2021.
On Free Speech
Dr. Kafeel declared innocent after months of imprisonment
In another significant decision, the Court scrapped the detention charges under the National Security Act (NSA) against Dr. Kafeel Khan in a case registered over a speech he made during the CAA-NRC protests at Aligarh Muslim University.
While reviewing the speech, the Court stated that Dr. Kafeel’s speech "does not disclose any effort to promote hatred or violence." The Court, while negating all the charges levelled against Dr Khan, observed that neither his detention nor extension of his detention under the NSA were sustainable in law.
The Founding-Editor of the news portal Wire, Siddharth Vardarajan, was granted bail by the High Court in a case lodged for a report allegedly containing defamatory comments against the State’s Chief Minister, Yogi Adityanath. The Court, while recounting the principle “bail, not jail”, observed:
“Thus, it is clear that the object of the bail is to secure the attendance of the accused at the trial. The accused person who enjoys freedom is in a much better position to look after his case and to properly defend himself in, the trial than if he is in custody.”
Another journalist, Prashant Kanojia, who was booked under Sections 153A, 500, 505(1)(b) and 505(2) the IPC and Section 66 of the IT Act, for his comments was granted bail in October by the Court in a case registered for allegedly posting a morphed tweet related to the Ram Mandir in Ayodhya. Rejecting the Advocate General’s submissions against the grant of bail, the Court observed:
“… the submission as regards the quantum of punishment or entitlement of the accused applicant to be released on bail could not be disputed on any tangible ground. Having regard to the totality of circumstances, a case for grant of bail is made out.”
On Personal Liberty
Referring to the famous saying ‘Injustice anywhere is a threat to justice everywhere’, the Court allowed pleas made for default bail, while also emphasising that a pandemic is not an excuse to justify the selective ignorance of pending remand matters or for denial of right to liberty under Article 21 of the Constitution.
"A mass disaster or Pandemic may severely obstruct our life and governing systems in many ways but the doors of the courts of law must remain open for the protection of Article 21 of the Constitution of India,” the Court said.
The High Court intervened to order the release of a man who languishing in jail only on account of his middle name, “Kumar”, having been omitted from a court order allowing him bail.
“It is on that small technicality that the Jail Superintendent/Jailer has flouted the bail order of this Court by refusing to release the applicant. This Court does not appreciate our orders being flouted with impunity. This Court fails to understand that when the applicant's name mentioned in the bail rejection order is "Vinod Baruaar", then why "Kumar" must be added to the name mentioned in the bail order, in order to make it effectual”, the Court said.
Preventive detention Laws should be strictly construed
While quashing the detention of a man under the National Security Act as arbitrary and illegal, the Court cautioned the authorities over the undue use of preventive detention powers, observing:
“Where the law confers extraordinary power on the executive to detain a person without recourse to the ordinary law of land and to trial by courts, such a law has to be strictly construed and the executive must exercise the power with extreme care.”
Cases against Tabhligi Jamaat members, foreign nationals
While granting relief to member of the Tablighi Jamaat charged with ‘attempt to murder’, the Court warned the authorities for their apparent abuse of power in levelling the said charge.
“From a perusal of the material, charge sheeting the applicant under Section 307 IPC prima facie reflects abuse of the power of law,” the order read.
The law does not permit any differentiation between Indian nationals and foreign citizens in the matter relating to grant of bail, the Court remarked while granting bail to foreign nationals accused of various offences and of violating COVID-19 norms to participate in the Nizamuddin Markaz and to take shelter in a mosque at Lucknow. The Court observed:
“The applicants who have prayed for bail even though are foreign nationals, cannot be deprived of their personal liberty except in procedure established by law and that they are also entitled to equal protection of law and equality before law. Therefore, unless and until extreme circumstances are pointed out, it cannot be considered that the parameters for considering a bail application for a national or a foreigner would be on a different footing before the Court of law.”
The Court granted bail to members of the Tabhlighi Jamat, reiterating that rights to personal liberty and rights against preventive detention were equally available to foreign nationals.
"Article 20 of the Constitution of India guarantees an equal protection to foreign nationals in the matter of trial in criminal cases and Article 21 guarantees protection of life and personal liberty in equal measure," it held.
An Iranian student approached the Court for relief after a case was lodged against him for over staying beyond the period of the visa granted to him. The Court upheld the norms of Article 21 of the Indian Constitution and bail was granted to the student. It was observed,
“Keeping in view the nature of the offence, evidence on record regarding complicity of the accused, larger mandate of the Article 21 of the Constitution of India, the applicant has made out a case for bail.”
Dissent is the hallmark of democracy
The Court granted bail to Yashwant Singh, who had tweeted that Chief Minister Adityanath “has transformed the state into a jungleraj in which no law and order prevails.” Upholding the right to ‘dissent, the Court observed:
“Expressing dissent on law and order situation in the State, is a hallmark of a constitutional liberal democracy like ours, constitutionally protected under Article 19 of the Constitution.”
In this case, the Court had taken note of Police atrocities which took place inside the AMU campus, where students were protesting against the Citizenship Amendment Act. Initially, on January 7, the court directed the National Human Rights Commission to probe the matter and prepare a report accordingly.
Later, on the basis of the recommendations made by the NHRC, the Court directed the authorities to compensate the students who were injured and also those whose property/bikes were vandalized by the Security forces.
“The DGP-Uttar Pradesh to identify the policemen (both district police and PAC), as seen in CCTV footages involved in stray incidents of damaging motorcycles and unnecessarily caning the apprehended students which has no bearing on the task of controlling law and order. A suitable action may also be taken against them as per rules and provisions that exist for subordinate officers in UP Police. The police force should be sensitized and special training modules be carried out to inculcate professionalism in handling such situations,” the Court said.
On a related note, the court also granted interim relief, on at least two occasions in pleas challenging the Uttar Pradesh government’s notices for recovery of damages for alleged property damage during the CAA-NRC protests in Lucknow. One such order under challenge demanded a sum of Rs 67 lakhs jointly and severally for those accused of participating in the protests.
Reminding the Police Section 66A is unconstitutional
The High Court was forced to tell the Uttar Pradesh Police on at least two occasions that Section 66A of the Information Technology Act has already been declared as ‘unconstitutional’. The court rebuked the authorities for citing the said provision, observing:
“We are amazed that despite Section 66-A of the Information Technology Act, 2000 having been declared ultra vires by the Apex Court in Shreya Singhal vs. Union of India, (2015) 5 SCC 1 yet F.I.Rs are being registered in our State under the said provision.”
The Court emphasised that prima facie, the registration of an FIR under Section 66A of the IT Act would disclose a complete disregard for the orders of the Supreme Court.
Cow Slaughter Act being used to target innocent individuals
The Court voiced concerns over the misuse of the Uttar Pradesh Prevention of Cow Slaughter Act, 1955. While granting bail to the a man charged under the Act, it was highlighted that the Act is being misused against innocent persons.
The Court said:
“Whenever any meat is recovered, it is normally shown as cow meat (beef) without getting it examined or analyzed by the Forensic Laboratory. In most of the cases, meat is not sent for analysis. Accused persons continue in jail for an offence that may not have been committed at all and which is triable by Magistrate Ist Class, having maximum sentence up to 7 years.”