Supreme Court of India has notified that physical mentioning of urgent matters shall start from 5th July 2021 before the mentioning officer.
This is in addition to the hearing by video conferencing as well.
Read full circular here:
This is in addition to the hearing by video conferencing as well.
Read full circular here:
The rationale for not entertaining a special leave petition challenging the order of High Court rejecting the review petition when main order in the writ petition is not challenged can be easily comprehended.Continue reading “Maintainability of Special Leave Petition against an Order passes in Review”
Supreme Court on 17th August has approved 6 names for elevation as judge in Delhi High Court. This is the statement issued by it:
The Supreme Court Collegium in its meeting held on 17th August,
2020, has approved the proposal for elevation of the following OF Advocates, as
Judges of the Delhi High Court:
1. Shri Jasmeet Singh,
2. Shri Amit Bansal,
3. Ms. Tara Vitasta Ganju
4 Shri Anish Dayal
5. Shri Amit Sharma, and
6. Ms. Mini Pushkarna.”
The entire judicial system has been unnecessarily brought into disrepute for no good cause whatsoever. It passes comprehension how it was, that the petitioner presumed, that there is an FIR lodged against any public functionary. There is an averment made in the writ petition that it is against the highest judicial functionaries; that FIR has been recorded. We do not find reflection of any name of the Judge of this Court in the FIR. There is no question of registering any FIR against any sitting Judge of the High Court or of this Court as it is not permissible as per the law laid down by a Constitution Bench of 5 Hon’ble Judges of this Court in the case of K. Veeraswami v. Union of India (1991) 3 SCC 655 wherein this Court observed that in order to ensure the independence of the judiciary the apprehension that the Executive being largest litigant, it is likely to misuse the power to prosecute the Judges. Any complaint against a Judge and investigation by the CBI if given publicity, will have a far reaching effect on the Judge and the litigant public. The need, therefore, is of judicious use of action taken under the Act. There cannot be registration of any FIR against a High Court Judge or Chief Justice of the High Court or the Supreme Court Judge without the consultation of the Hon’ble Chief Justice of India and, in case there is an allegation against Hon’ble Chief Justice of India, the decision has to be taken by the Hon’ble President, in accordance with the procedure prescribed in the said decision. Continue reading “Frivolous Public Interest Litigation must be avoided!”
One cannot ignore the problem faced by a husband if proceedings are transferred on account of genuine difficulties faced by the wife. The husband may find it difficult to contest proceedings at a place which is convenient to the wife. Thus, transfer is not always a solution acceptable to both the parties. It may be appropriate that available technology of videoconferencing is used where both the parties have equal difficulty and there is no place which is convenient to both the parties. We understand that in every district in the country videoconferencing is now available. In any case, wherever such facility is available, it ought to be fully utilised and all the High Courts ought to issue appropriate administrative instructions to regulate the use of videoconferencing for certain category of cases. Matrimonial cases where one of the parties resides outside court’s jurisdiction is one of such categories. Wherever one or both the parties make a request for use of videoconferencing, proceedings may be conducted on videoconferencing, obviating the needs of the party to appear in person. In several cases, this Court has directed recording of evidence by video conferencing.
Sexual harassment and gender sensitivity at work places is an issue which requires serious attention as this is seriously related to making work places safe for women however personal over sensitivity of an individual about these matters shall always be a matter of concern. India has already ratified United Nation’s Convention on the Elimination of all Forms of Discrimination against Women, on the 25th June, 1993.
The Supreme Court of India in their judgement in August, 1997, in the case of Vishaka v. State of Rajasthan, recognizing the International Conventions and Norms, interpreted gender equality of women, in relation to work and held that sexual harassment of women at the workplace, is against their dignity, and violative of Article 14, 15 (1) and 21 of the Constitution of India. It also held that it is the violation of the fundamental rights under Article 19 (1) (g) to practice any profession or to carry out any occupation, trade or business. Therefore it laid down a binding guide lines in this regard.
1. Duty of the Employer or other responsible persons in work places and other institutions: It shall be the duty of the employer or other responsible persons in work places or other institutions to prevent or deter the commission of acts of sexual harassment and to provide the procedures for the resolution, settlement or prosecution of acts of sexual harassment by taking all steps required.
2. Definition: For this purpose,sexual harassment includes such unwelcome sexually determined behaviour (Whether directly or by implication) as:
a) Physical contact and advances;
b) a demand or request for sexual favours;
c) sexually coloured remarks;
d) showing pornography;
e) any other unwelcome physical, verbal or non – verbal conduct of sexual
Where any of these acts is committed in circumstances whereunder the victim of such conduct has a reasonable apprehension that in relation to the victims employment or work whether she is drawing salary, or honorarium or voluntary, whether in Government, public or private enterprise such conduct can be humiliating and may constitute a health and safety problem. It is discriminatory for instance when the woman has reasonable grounds to believe that her objection would disadvantage her in connection with her employment or work including recruiting or promotion or
when it creates a hostile work environment. Adverse consequences might by visited if the victim does not consent to the conduct in question or raises any objection thereto.
3. Preventive Step: All employers or persons in charge of work place whether in the public or private sector should take appropriate steps to prevent sexual harassment. Without prejudice to the generality of this obligation they should take the following steps:
(a) Express prohibition of sexual harassment as defined above at the work place should be notified, published and circulated in appropriate ways.
(b) The Rules/Regulations of Government and Public Sector bodies relating to conduct and discipline should include rules/regulations prohibiting sexual harassment and provide for appropriate penalties in such rules against the offender.
(c) As regards private employers steps should be taken to include the aforesaid prohibitions in the standing orders under the Industrial Employment (Standing Orders) Act, 1946.
(d) Appropriate work conditions should be provided in respect of work, leisure, health and hygiene to further ensure that there is no hostile environment towards women at work places and no employee woman should have reasonable grounds to believe that she is disadvantaged in connection with her employment.
4. Criminal Proceedings: Where such conduct amounts to a specific offence under the Indian Penal Code or under any other law, the employer shall initiate appropriate action in accordance with law by making a complaint with the appropriate authority. In particular, it should ensure that victims, or witnesses are not victimized or discriminated against while dealing with complaints of sexual harassment. The victims of sexual harassment should have the option to seek transfer of the perpetrator or their own transfer.
5. Disciplinary Action: Where such conduct amounts to misconduct in employment as defined by the relevant service rules, appropriate disciplinary action should be initiated by the employer in accordance with those rules.
6. Complaint Mechanism: Whether or not such conduct constitutions an offence under law or a breach of the service rules, an appropriate complaint mechanism should be created in the employers organization for redress of the complaint made by the victim. Such complaint mechanism should ensure time bound treatment of complaints.
7. Complaints Committee: The complaint mechanism, referred to in (6) above, should be adequate to provide, where necessary, Complaints Committee, a special counsellor or other support service, including the maintenance of confidentiality.
The Complaints Committee should be heated by a woman and not less than half of its member should be women. Further, to prevent the possibility of any undue pressure or influence from senior levels, such Complaints Committee should involve a third party, either NGO or other body who is familiar with the issue of sexual harassment.
The Complaints Committee must make an annual report to the Government department concerned of the complaints and action taken by them. The employers and person in charge will also on the compliance with the aforesaid guidelines including on the reports of the Complaints Committee to the Government department.
8. Workers Initiative: Employees should be allowed to raise issues sexual harassment at workers meeting and in other appropriate forum and it should be affirmatively discussed in Employer – Employee Meetings.
9. Awareness: Awareness of the rights of female employees in this regard should be created in particular by prominently notifying the guidelines ( and appropriate legislation when enacted on the subject ) in a suitable manner.
10. Third Party Harassment: Where sexual harassment occurs as a result of an act or omission by any third
party or outsider, the employer and person in charge will take all steps necessary and reasonable to assist the affected person in terms of support and preventive action.
11. The Central / State Governments are requested to consider adopting suitable measures including legislation to ensure that the guidelines laid down by this order are also observed by the employers in Private Sector.
12. These guidelines will not prejudice any rights available under the Protection of Human Rights Act, 1993.
This was the question formulated by Supreme Court:
Does an action of the superior against a female employee which is against moral sanctions and does not withstand test of decency and modesty not amount to sexual harassment ? Is physical contact with the female employee an essential ingredient of such a charge ? Does the allegation that the superior tried to molest a female employee at the place of work, not constitute an act unbecoming of good conduct and behaviour expected from the superior ?
And it answered the question in these words:
Any action or gesture, whether directly or by implication, aims at or has the tendency to outrage the modesty of a female employee, must fall under the general concept of the definition of sexual harassment.
Though the Supreme Court in it’s previous decision in the case of Vishakha v. State of Rajasthan had given directions (in the year 1997 !) for formation of Committees at work places to look into the grievances of sexual harassment, it took no step to form such committee in it’s own establishment. With a view to redress such grivances in the premises of Supreme Court of India, itself, on 21st September 2013 SCI promulgated:
A complaint of indecent behaviour bordering on sexual harassment was made against a practicing lawyer. The Committee under aforesaid Regulations of 2013 inquired into the matter and recommended that the said Advocate Mr. C.S. Nagesh, be barred from the premises of Supreme Court for a period of one year.
The Chief Justice of India, however did not accept the recommendation in entirety and barred the concerned advocate/lawyer for a period of six months only.
The relevant order dated 15th March, 2014, stated to have been passed under Regulation 15(c) can be reached here.
Comment: This is a new branch of discipline being developed. There are many new questions being raised by this order:
in the exercise of the Supreme Court’s power of review, the Court is not a trier of facts and does not normally undertake the re-examination of the evidence presented by the contending parties during the trial of the case considering that the findings of facts of the CA are conclusive and binding on the Court. However, the Court had recognized several exceptions to this rule, to wit:
(Italics in original; underscoring supplied; citations omitted)
Supreme Court is bound to accept the statement of the judges recorded in their judgment and, therefore, it cannot launch into an inquiry as to what transpired in the High Court. It is simply not done. Public policy bars such an action and judicial decorum restrains it.
Supreme Court cannot allow the statement of the judges to be contradicted by statements at the Bar or by affidavit and other evidence. Matters of judicial record are unquestionable and not open to doubt. Judges cannot be dragged into the arena. If the judges say in their judgments that something was done, said or admitted before them, that has to be the last word on the subject. Judges record is conclusive.
There was a divergence of opinion in different High Courts on the above question which was settled by Supreme Court as under:
The question whether the appellants have any independent source of income and have contributed towards the purchase of the property from their own independent income can be only answered by the appellants themselves and not by a mere holder of power of attorney from them. The power of attorney holder does not have the personal knowledge of the matter of the appellants and therefore he can neither depose on his personal knowledge nor can he be cross-examined on those facts which are to the personal knowledge of the principal. Order III, Rules 1 and 2 CPC, empowers the holder of power of attorney to “act” on behalf of the principal. In our view the word “acts” employed in Order III, Rules 1 and 2 CPC, confines only in respect of “acts” done by the power of attorney holder in exercise of power granted by the instrument. The term “acts” would not include deposing in place and instead of the principal. In other words, if the power of attorney holder has rendered some “acts” in pursuance to power of attorney, he may depose for the principal in respect of such acts, but he cannot depose for the principal for the acts done by the principal and not by him. Similarly, he cannot depose for the principal in respect of the matter which only the principal can have a personal knowledge and in respect of which the principal is entitled to be cross-examined.
[Source: Janki Vashdeo Bhojwani v. Indusind Bank Ltd., (2005) 2 SCC 217.]
[Source: Noor Mohammed vs Jetha Nand (Supreme Court of India)]