14 Nov 2016

Act against Female Foeticide, etc. - Supreme Court issues directions

Noting the importance of related issues i.e. "increase of female foeticide, resultant imbalance of sex ratio and the indifference in the implementation of the stringent law" [Pre-conception and Pre-natal Diagnostic Techniques (Prohibition of Sex Selection) Act, 1994], in its recent decision [Voluntary Health Association of Punjab v. Union of India - Writ Petition (Civil) No. 349/2016 - decision dated 08.11.2016] the Supreme Court has passed a number of directions to the various Government agencies to work towards the cause.

The Supreme Court was categorical to opine "that a female child is entitled to enjoy equal right that a male child is allowed to have" and the "constitutional identity of a female child cannot be mortgaged to any kind of social or other concept that has developed or is thought of". Therefore, "when a female foetus is destroyed through artificial means which is legally impermissible, the dignity of life of a woman to be born is extinguished"; it "corrodes the human values" and therefore "let it be stated with certitude and without allowing any room for any kind of equivocation or ambiguity, the perception of any individual or group or organization or system treating a woman with inequity, indignity, inequality or any kind of discrimination is constitutionally impermissible." Unequivocally expressing its view-point, the Supreme Court further expressed the following;
"34. ... The historical perception has to be given a prompt burial. Female foeticide is conceived by the society that definitely includes the parents because of unethical perception of life and nonchalant attitude towards law. The society that treats man and woman with equal dignity shows the reflections of a progressive and civilized society. To think that a woman should think what a man or a society wants her to think is tantamounts to slaughtering her choice, and definitely a humiliating act. When freedom of free choice is allowed within constitutional and statutory parameters, others cannot determine the norms as that would amount to acting in derogation of law. Decrease in the sex ratio is a sign of colossal calamity and it cannot be allowed to happen. Concrete steps have to be taken to increase the same so that invited social disasters do not befall on the society. The present generation is expected to be responsible to the posterity and not to take such steps to sterilize the birth rate in violation of law. The societal perception has to be metamorphosed having respect to legal postulates."
In this background, the Supreme Court issued a number of directions in the following terms;
32. Having stated about the scheme of the Act and the purpose of the various provisions and also the Rules framed under the Act, the dropping of sex ratio still remains a social affliction and a disease.
33. Keeping in view the deliberations made from time to time and regard being had to the purpose of the Act and the far reaching impact of the problem, we think it appropriate to issue the following directions in addition to the directions issued in the earlier order:-
(a) All the States and the Union Territories in India shall maintain a centralized database of civil registration records from all registration units so that information can be made available from the website regarding the number of boys and girls being born.
(b) The information that shall be displayed on the website shall contain the birth information for each District, Municipality, Corporation or Gram Panchayat so that a visual comparison of boys and girls born can be immediately seen.
(c) The statutory authorities if not constituted as envisaged under the Act shall be constituted forthwith and the competent authorities shall take steps for the reconstitution of the statutory bodies so that they can become immediately functional after expiry of the term. That apart, they shall meet regularly so that the provisions of the Act can be implemented in reality and the effectiveness of the legislation is felt and realized in the society.
(d) The provisions contained in Sections 22 and 23 shall be strictly adhered to. Section 23(2) shall be duly complied with and it shall be reported by the authorities so that the State Medical Council takes necessary action after the intimation is given under the said provision. The Appropriate Authorities who have been appointed under Sections 17(1) and 17(2) shall be imparted periodical training to carry out the functions as required under various provisions of the Act.
(e) If there has been violation of any of the provisions of the Act or the Rules, proper action has to be taken by the authorities under the Act so that the legally inapposite acts are immediately curbed.
(f) The Courts which deal with the complaints under the Act shall be fast tracked and the concerned High Courts shall issue appropriate directions in that regard.
(g) The judicial officers who are to deal with these cases under the Act shall be periodically imparted training in the Judicial Academies or Training Institutes, as the case may be, so that they can be sensitive and develop the requisite sensitivity as projected in the objects and reasons of the Act and its various provisions and in view of the need of the society.
(h) The Director of Prosecution or, if the said post is not there, the Legal Remembrancer or the Law Secretary shall take stock of things with regard to the lodging of prosecution so that the purpose of the Act is subserved.
(i) The Courts that deal with the complaints under the Act shall deal with the matters in promptitude and submit the quarterly report to the High Courts through the concerned Sessions and District Judge.
(j) The learned Chief Justices of each of the High Courts in the country are requested to constitute a Committee of three Judges that can periodically oversee the progress of the cases.
(k) The awareness campaigns with regard to the provisions of the Act as well as the social awareness shall be undertaken as per the direction No 9.8 in the order dated March 4, 2013 passed in Voluntary Health Association of Punjab (supra).
(l) The State Legal Services Authorities of the States shall give emphasis on this campaign during the spread of legal aid and involve the para-legal volunteers.
(m) The Union of India and the States shall see to it that appropriate directions are issued to the authorities of All India Radio and Doordarshan functioning in various States to give wide publicity pertaining to the saving of the girl child and the grave dangers the society shall face because of female foeticide.
(n) All the appropriate authorities including the States and districts notified under the Act shall submit quarterly progress report to the Government of India through the State Government and maintain Form H for keeping the information of all registrations readily available as per sub- rule 6 of Rule 18A of the Rules.
(o) The States and Union Territories shall implement the Pre-conception and Pre-natal Diagnostic Techniques (Prohibition of Sex Selection) (Six Months Training) Rules, 2014 forthwith considering that the training provided therein is imperative for realising the objects and purpose of this Act.
(p) As the Union of India and some States framed incentive schemes for the girl child, the States that have not framed such schemes, may introduce such schemes."

Entry Tax Law - Nine-judge Supreme Court judgment pronounced

Declaring the legal position which overrules the position prevailing for various decades now, last week a nine-judge bench of the Supreme Court has pronounced its decision on various aspect of Entry Tax laws. This decision in Jindal Stainless Ltd. v. State of Haryana [Civil Appeal No. 3453/2002 - decision dated 11.11.2016] has a significant bearing on various constitutional aspects; (a) federal nature of the Constitution; (b) freedom of inter-state trade and commerce under Part - XIII of the Constitution; (c) autonomy and sovereignty of States in designing local economy and imposing taxes; (d) principles of constitutional interpretation; etc.

The lead decision has been written by Chief Justice of India, Justice T.S. Thakur (for himself, Justice A.K. Sikri and Justice A.M. Khanwilkar. This decision has been agreed by Justice S.A. Bobde, Justice Shiv Kirti Singh, Justice N.V. Ramana, and Justice R. Bhanumati, who have also written seperate concurring opinions. Justice D.Y. Chandrachud and Justice Ashok Bhushan have written seperate dissenting opinions. Thus out of nine judges there are seven opinions. In all a lengthy decision (exceeding 900 pages) but a good backgrounder for those interested in constitutional law.

Saumya Murder case decision - Review and Contempt by Former Supreme Court Judge

Last week the Supreme Court faced an unprecedented situation - issuance of a 'Contempt of Court' notice to a former Judge of the Supreme Court. This situation arose on account of a decision of the Supreme Court in Govindaswamy v. State of Kerala. Holding a view that this decision was incorrect, a former judge of the Supreme Court Justice M. Katju expressed his views on his blog on a social media website. 

Considering that the views of a former Supreme Court Judge were penitent ground for review, the judges who delivered the judgment of the Court in Govindaswamy v. State of Kerala undertook suo-motu review proceedings. More so, possibly to hear first-hand from him, the Supreme Court judges issued a notice to Justice Katju to personally appear in the Supreme Court and justify his stand. This itself was unprecedented as in the history of the Supreme Court of India a former Supreme Court judge has never been called in the Court. 

Last week Justice Katju appeared in the Court to explain his stand. The Supreme Court also heard other parties on the review petition and by a detailed order dated 11.11.2016 dismissed the review petition in [SUO MOTU REVIEW PETITION (CRL) NO.1/2016]. However the Supreme Court did not stop here. Being of the opinion that the views expressed by Justice Katju "seem to be an attack on the Judges and not on the judgment", the Supreme Court vide a separate order dated 11.11.2016 has issued notice for contempt of Court to Justice Katju in SUO MOTU CONTEMPT PETITION (CRIMINAL) NO. 4 & 5 OF 2016.  

As stated above, this is unprecedented. In the history of the Supreme Court of India there is no parallel to a former Supreme Court judge having been issued notice to defend against contempt of court. 

We bring this update to you.