Tags Posts tagged with "Supreme Court"

Supreme Court

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Deepavali can be celebrated with equal fervour by various other means as well. Direct evidence is available of deterioration of air quality at alarming levels every year due to burning firecrackers during Deepavali.

On Monday, Oct. 9, the Supreme Court suspended the sale of firecrackers in Delhi NCR region till November 1, 2017. This step was taken to test whether a Deepavali without firecrackers will have a “positive effect” on the health of citizens of this region and a steadily deteriorating air quality of Delhi NCR.

Deepavali can be celebrated with equal fervour by various other means as well. Direct evidence is available of deterioration of air quality at alarming levels every year due to burning firecrackers during Deepavali. Particularly in 2016 pm [particulate matter] levels had shot up by three times, making Delhi the worst city in the world, as far as air pollution was concerned. Direct and immediate cause therefor was burning of crackers during Deepavali for this incident.

The Bench of judges pointed to the various efforts made by the government, the media and civil society to create awareness of the harms of burning firecrackers, especially on the children. The adverse effects have been witnessed year after year. The air quality deteriorates abysmally and the city chokes on air. This leads to closing of the schools and the authorities are compelled to take various measures on emergency basis, when faced with a “health crisis”.

Central Pollution Control Board (CPCB) has consistent stated for the past 20 years that sulphur in fireworks should be banned. It released in a statement, “Sulphur on combustion produces sulphur-dioxide and it is extremely harmful to health.” The CPCB has clearly said that between 9 p.m. to midnight on Deepavali, the levels of sulphur-dioxide content in the air rise dangerously.

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The Madras High Court court has passed an order staying a possible floor test that may have taken place.

A question has arisen that, whether CM Edappadi K. Palaniswami commands a majority in the State Assembly or not. Dissident legislators from the ruling AIADMK have pulled back the ruling party’s strength in the Assembly.

On August 22, the dissentors approached the Governor with a memorandum expressing lack of confidence in the CM. And, on September 18, Speaker P. Dhanapal stated that this amounted to ‘voluntarily giving up their membership of the party’ and disqualified most of them.

The DMK leader, M.K. Stalin, also approached the Governor, demanding a floor test as the ruling party has lost its majority. When the Governor failed to act, he moved to Madras HC asking for a direction to the Governor to direct the CM to seek a confidence vote.

While dealing with the Arunachal Pradesh crisis in the previous year, a Constitution Bench said, a breakaway group could be legitimate and recognisable only if it constitutes 2/3rds of a party, as stipulated in the 10th Schedule, and the Governor could embark on a constitutional course of action only on the claims of such a group.

The court considering that Speaker might have been planning to disqualify the dissenters in an effort to bring about a majority in a truncated House, has passed an order staying a possible floor test that may have taken place.

There are precedents for such a move. The SC had ordered a ‘composite floor test’ in 1998 and 2005 in Uttar Pradesh and Jharkhand, though among much criticism.

Taking up disqualification petitions for adjudication just before a floor test has now become a pattern. Disqualifying rebellious MLAs has become a favoured way of ensuring the majority of a CM. It is time for amending the law which confers on the Speaker the authority to adjudicate questions of defection. At present, the floor test remains the sole and supreme means of ascertaining majority. That is why it is crucial that, the partisan element should be taken out of anti-defection law, and the adjudicatory power must be transferred to an independent body such as the Election Commission.

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Despite living for centuries in Myanmar, the Rohingya (mostly Muslim), have been denied citizenship. A U.N. report has documented numerous instances of gang rape and killings by Myanmar’s security forces.

On Sept 11, Zeid Ra’ad al-Hussein, the U.N. human rights chief, termed the actions of state against the Rohingya community as “a textbook example of ethnic cleansing”.

In India, where reportedly 40,000 Rohingyas are lodged, the state is considering returning the refugees. Kiren Rijiju, the Union Minister of State for Home Affairs said that, as far as we are concerned they are all illegal immigrants and they have no basis to live here

Mohammad Salimullah and Mohammad Shaqir, a pair of Rohingya refugees, have filed a petition in the Supreme Court. Their petition raises two points:

  • Any deportation would violate the fundamental rights to equality and to life.
  • India would be infringing international law in returning them to Myanmar, in particularl the principle of non-refoulement.

The next hearing for the case is on Sept18. The government, however, may argue that:

  • India is not bound to follow the principle of non-refoulement, because it is not a signatory to the 1951 U.N. Convention Relating to the Status of Refugees.
  • It could be claimed that the Rohingyas are guilty of committing crimes against peace and are a threat to India’s national security.

Taking a look at ‘The principle of non-refoulement’

It is articulated in Article 33 of the 1951 Convention. It mandates that no state shall return or expel a refugee to “the frontiers of territories where his freedom or life would be threatened on account of his race, nationality, religion, membership of a particular political opinion or social group”. However, it certainly allows for an exception in cases if there are “reasonable grounds.”

Previous cases on the same premise:

In their judgments respectively in Dongh Lian Kham v. Union of India (2015) and the Ktaer Abbas Habib Al Qutaifi v. Union of India (1998) Delhi and Gujarat High Courts have virtually incorporated non-refoulement into the guarantees of Article 21 of the Constitution. The Gujarat High Court wrote that the principle protects life and liberty of a human being irrespective of his nationality. It is definitely encompassed in Article 21 of the Constitution, so long as the presence of a refugee is not a threat to the law and order and security of India.

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Supreme Court on Tuesday declared talaq-e-biddat or instant and irrevocable talaq as a "manifestly arbitrary" practice.

In a 3:2 majority, Supreme Court on Tuesday declared talaq-e-biddat or instant and irrevocable talaq as a “manifestly arbitrary” practice. According to the SC, it is not protected by Article 25 of the Constitution which provides freedom of religion.

Chief Justice J.S. Khehar, who led the Bench, said that talaq-e-biddat is an integral part of Article 25 (freedom of religion). He also said that instant talaq does not violate the Constitution, and said it is the responsibility of the legislature to decide a law within six months. This view was also endorsed by Justice S. Abdul Nazeer.

The Chief Justice, however, also said that even the Muslim world has shed talaq-e-biddat and there is no reason for an independent country like India to lag behind. He has appealed to political parties and lawmakers to set aside their individual profits and give frame a new, suitable law.

Justices Kurian Joseph, U.U. Lalit and Rohinton Fali Nariman gave separate judgments against the validity of instant talaq. According to Justice Nariman, talaq-e-biddat  allows a Muslim man to “whimsically and capriciously”  divorce his wife. The practice according to him is “manifestly arbitrary” and does not enjoy the protection of Article 25.

Justice Kurian differed with Chief Justice Khehar and said that just because a practice has been around for 1,400 years, this fact does not make it eligible for protection under Article 25 of the constitution. Justice Kurian also started an uproar by suggesting an alternative that a Muslim bride, should be allowed to lay down a condition in the nikah nama that, in case the marriage hits a rough patch she would not be subjected to instant talaq.

The All India Muslim Personal Law Board (AIMPLB) holds that triple talaq is a matter of faith followed for 1400 years. The Centre had always claimed that instant talaq was not fundamental to Islam and it has promised to bring a new divorce law for Muslim.

 

 

 

 

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Nawaz Sharif was dismissed for not declaring income at the time of filing his nomination papers for the 2013 election.

The Pakistani military has dominated the political institutions in the country for at least 50 of Pakistan’s 70 years as an independent state. However, over the last decade, judiciary and legislature have emerged to contest for the political sphere.

Mr. Sharif was first dismissed in 1993 under the provision of the Eighth Amendment to the Constitution of Pakistan, under Article 58 2(b), allowing the President to dismiss the Parliament. Mr. Sharif’s was again removed from the office in 1999 after a military coup by General Parvez Musharraf. Pakistan’s supreme judiciary has always supported the actions of the military providing constitutional and judicial cover to the coups.

Mr. Sharif, is the leader of the Pakistan Muslim League-Nawaz, although following his dismissal, the Election Commission of Pakistan has asked him to be removed formally as the party’s president.

He was dismissed for not declaring income at the time of filing his nomination papers for the 2013 election. He has promised to challenge the decision and gathered some support among the legal community over the modus operandi of the court.

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Dowry is a cancer to the society.

The Anti-dowry law of 1961 had sought to protect women from being killed or tortured in their marital homes. Section 498A of the IPC makes dowry harassment cognisable and non-bailable offence.

However, an argument was raised that Section 498A is widely misused by disgruntled women who are determined to destroy family values and drag completely innocent husbands and in-laws to jail. The Supreme Court has observed that women are using Section 498A as a weapon, rather than a shield, against their unfortunate in-laws. Court has acknowledged that most of such complaints are filed in the heat of the moment, over trivial issues.

To protect the victims of false accusations, the court:

  • In a 2014, provided a nine-point checklist before any arrests could be made under Section 498A.
  • Mandated a family welfare committee in every district to scrutinise dowry harassment cases, constituted of social workers.
  • Removed the need for the accused to make a personal appearance in court.

These orders came after Justice C.K. Prasad noted that in 2012 two lakh arrests were made under Section 498A, with only 14.4% of conviction rate. Based on this, the judges conclude that the complaints were for the most part “trivial”.

24,771 dowry deaths have occurred in India from 2012 to 2014 making Section 498A vital for the protection of genuine victims. Every law has the potential to be misused and because of such cases the pleas of genuine victims are gone unanswered. Strong regulations are to be laid down if the rights of women are to be upheld and diluting the Anti-dowry law is not one of them.

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Mr. Sharif was accused in social media of being an Indian agent, had alleged investments in India and ‘secret partnerships’ with Indian businessmen.

Supreme Court of Pakistan has decided to disqualify Prime Minister Nawaz Sharif. This action confirms the Pakistani ideal that a politician can engage in corruption only if he does not challenge the country’s judiciary.

During the decade of 90s, civilian Prime Ministers who failed do as ordered were dismissed by the President by the power bestowed to him by the Article 58-2(b) of the Constitution. After the dismissal of Benazir Bhutto for two times and once of Mr. Sharif, the Article 58-2(b) of the Constitution was removed. This action cleared the path for General Pervez Musharraf’s military coup in 1999. Nowadays, Articles 62 and 63 of the Constitution have been cited as the means for the establishment to keep an eye on the politicians.

The Supreme Court has found Mr. Sharif in violation of Article 62(1)(f) that demands that members of Parliament to be “sagacious, righteous, non-profligate, honest and Ameen”. “Ameen”, means ‘the keeper of trust.’ It is one of the attributes of Prophet Muhammad, which is a very hard standard to meet for any Muslim.

The Pakistani Supreme Court is acting similar to Iran’s Guardian Council, which disqualifies politicians if they are not sufficiently dedicated to Islamic values.

If any convincing proof of corruption had existed, a trial would have taken place. But in the last seventy years, each and every Pakistani Prime Ministers have either been assassinated, dismissed from their post, or forced to resign, or deposed in military coups. Mr. Sharif lost the army’s favour when he decided to appear in the matters of foreign and national security policy after becoming the Prime Minister. He was ousted before once by the President and then again by the army chief in a coup. Elected for a third time, now he has been dismissed by the Supreme Court.

This scenario proves the point that Pakistan is far from being a democracy and the powerful sway of the media and influence of the army can place or remove a person from the throne. Mr. Sharif is clearly not a right person for the job but the manner of his removal from office is also not right.