Cover Story  Hijab controversy: Legal Aspects  Criminalization of Marital rape: An Overview Streaming Judgments  Plea for 30% reservation of women advocates  Supreme Court approved the Parsi customs of last rites for the body of COVID victims  Supreme Court on the prisoners released due to COVID-19  Supreme Court sought advice on hearing petitions pending in High Courts against state laws  Supreme Court directed MPSC to conduct the exam afresh Streaming case laws  Supreme Court asked Centre to revise Rules relating to motor accident claims  Supreme Court held insurance company cannot repudiate a claim merely for the delay in intimation  Supreme Court on life imprisonment till last breath as substitution of death sentence Streaming Legal News  Ravi Mittal appointed as chairperson of IBBI  Supreme Court upheld an order of Bombay High Court in the UAPA case  Can government reject CJI’s recommendation for Court Allowance? … ...And other legal issues 

Legislature corner

The Constitution (Scheduled Tribes) Orders (Amendment) Bill, 2022

know your law 

Attempts to Commit Offences

Is this legal  Refresh your memory: question for judiciary 

F e b r u a r y, 2 0 2 2

THE STREAMING LAW/FEBRUARY-2022

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Hijab controversy: Legal Aspects  Criminalization of Marital rape: An Overview 3. Streaming Judgments Click  Plea for 30% reservation of women advocates  Supreme Court approved the Parsi customs of last rites for the body of COVID victims  Supreme Court on the prisoners released due to COVID-19  Supreme Court sought advice on hearing petitions pending in High Courts against state laws  Supreme Court directed MPSC to conduct the exam afresh 

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4. Legislature corner

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5. Streaming case laws

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6. Streaming Legal News

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7. Know your law

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8. Is this legal? 9. Refresh your memory Haryana Judiciary Prelims 2018

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10. Vidhigraam Corner

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The Constitution (Scheduled Tribes) Orders (Amendment) Bill, 2022

Supreme Court asked Centre to revise Rules relating to motor accident claims  Supreme Court held insurance company cannot repudiate a claim merely for the delay in intimation  Supreme Court on life imprisonment till last breath as substitution of death sentence 

Ravi Mittal appointed as chairperson of IBBI  Supreme Court upheld an order of Bombay High Court in the UAPA case  Can government reject CJI’s recommendation for Court Allowance?  Petition in Supreme Court for an alternate mode of assessment for class 10 and 12 boards  Supreme Court rejected to hear plea challenging provisions of RTE Act, 2009  Supreme Court pulled up the UP govt. for the acting arbitrary manner in recovery notices to anti-CAA protesters 

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Attempts to Commit Offences

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THE STREAMING LAW/FEBRUARY-2022

Dear readers, In February, 2022 two court trials got attention from the legal fraternity as well as from the media. These were Hijab versus uniform in educational institutions were being heard by Karnataka High Court, and criminalization of forceful conjugal relationship by husband upon his wife was being heard by Delhi High Court. The first trial can affect social harmony and the second can make a change in the basic social institution “family.” An important hearing related to education was done by Supreme Court also in February, 2022. In this edition, we have tried to convey the factual and legal aspects of so much legal news. “Attempt to commit offences” is a critical topic for law professionals because attempt means some act, some furtherance toward the commission of an offence, which might be converted an offence if the certain thing could not have happened or could have happened. The reason for failure needs a careful examination of the whole transaction to get proper punishment for the offender. Unlike planning and preparation of offence, the attempt for commit an offence is a punishable stage. So, “attempt to commit offences” was also picked up for this edition.

This edition includes some important provisions related to a modification in DDA (Delhi Development Authority) flats and other practically useful information, to make this edition more useful. Like the previous edition, this edition is also available both digitally and physically so that you can read it whenever you get the time, as per your convenience. After downloading the PDF of the same, you will be able to read it even if you are offline. In digital copy, all the main parts of this magazine are internally linked. So, it will take only one click to go from one part of it to another or even to the website. This will save your time. The colour combination is such that the print out will be clear and easy to read. As, you had liked and appreciated the first edition of this magazine. We hope you will like this edition too. Your suggestions are invited to make it more useful. Your suggestions and feedback will help make the magazine even better. Thank you.

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essential religious practice of Islam? 2. Whether state interference in such matters is warranted? 3. Whether wearing of hijab partakes the character of the right to expression under Article 19(1) (a) of the Constitution and whether restriction can be levied only under Article 19(2). Facts of the case Petitioners are girl students of Government PU (Pre- University) college, Udupi district, Karnataka. They claim that they were wearing a headscarf, as part of their religious and cultural practice, over their uniform. However, the respondent-college insisted that they remove their heads scarf. Six students were made to stand out of the class and this discrimination is continuing since December 2021. Petitioners claim that a representation was made to the District Education Officer. On January 1, 2022, the principal called a meeting of the College Development Committee. This committee declared that petitioners should not wear the headscarf. Following this, the petitioners were not allowed to attend classes and were made to sit outside, which led to protests.

This decision led to uproar. Students from other communities started support to college and the government. The row has spilt to other colleges in the state. After a violent clash between police and students in Bengaluru, the state government has issued the second order imposing a ban on the 5

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he hijab controversy is one of dominating news in recent days. The issue throws up legal questions on reading the freedom of religion and whether the right to wear a hijab is constitutionally protected. This case is pending before the Karnataka High Court for the final order. Interim order dated February 10, 2022, will continue till further order. Interim order February 10, 2022. The Karnataka High Court passed an interim order in the petitions challenging the Hijab ban in colleges in the state of Karnataka. In this interim order, the high court requested the State to re-open the educational institutions at the earliest and has restrained students from wearing any sort of religious clothes. This order applies only to those institutions which have prescribed a uniform dress code. Case details This case is registered as “Resham & Anr. V. State of Karnataka & Ors (WP No. 2347/2022, connected cases WP No. 2146/2022, WP No. 2880/2022, WP No. 3038/2022, WP No. 3044/2022). Petition filed by Muslim girl students challenging the action of a government college in denying them entry for wearing a hijab (headscarf). The petitioners prayed for an interim arrangement, where they can continue to wear a headscarf of the same colour as the uniform go to the college. A single bench had referred the petitions to a larger bench observing that “questions of seminal importance” are involved. The three-member bench of Chief Justice Ritu Raj Awasthi, Justice Krishna S. Dixit and Justice J.M. Khanzi is hearing this matter. Legal questions before the court 1. Whether wearing of hijab is part of the

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wearing of clothes that tend to disturb equality, integrity, and public order and imposed section 144 in select districts. Aggrieved by the alleged illegal and discriminatory action of PU College which has denied them entry into the college on the sole ground of wearing hijab, Petitioners (girl students) approached the court seeking a declaration that wearing a hijab (head scarf) is a fundamental right guaranteed under Article 14 and 25 of the Constitution of India and is an essential practice of Islam. Contentions on behalf of the petitioner/ students The right to wear hijab is an essential religious practice under Islam, and the State is not empowered to interfere with such rights under Articles 14, 19 and 25 of the Constitution. Wearing a hijab is an expression protected under Article 19 (1) (a) of the Constitution which guarantees the right to freedom of speech and expression. Constitutionally, a right under Article 19 (1) (a) can only be limited to the “reasonable restrictions” mentioned in Article 19 (2). Reasonable restrictions include sovereignty and integrity of India, friendly relations with foreign states, public order, decency or morality or contempt of courts, defamation or incitement to an offence. In the NALSA V Union of India case, the Supreme Court held clothing can also form part of one’s expression and identity. Their advocate pointed out that the Motor Vehicles Rules exempt Sikhs who wear turbans from the requirement of the helmet while riding bikes. Similarly, in the Supreme Court Rules, there are provisions for pardanashin women. Article 25 of the Constitution confers two rights, first, the freedom of conscience and, second, the freedom to practice and propagate religion “here petitioners assert the right to wear hijab on the freedom of conscience as well as their right to religion.” The lead case on freedom of conscience is Om Bijoe Emmanuel v. State of Kerala (popularly known as the National Anthem Case). In this

case, the Supreme Court decided on the freedom of conscience without going into religious practice. Court did not frame the question of whether the refusal to sing the national anthem was part of the essential religious practice of Jehova’s Witness, and merely, examined if it was based on a bonafide religious belief. Wearing Hijab is an essential religious practice, which the state can’t deny. Kerala High Court in the 2016 judgment held that it is a farz to cover the head, after discussing the sources of Islamic law including the Holy Quran and Hadith. The court allowed two Muslim girl students to wear it while appearing for the CBSE All India Pre Medical Test (AIPMT). Advocate for petitioners cited the judgement of the Madras High Court in M. Ajmal Khan V. Election Commission of India. In this case, the question before the court was whether Muslim women clad in purdahs/burqas could be photographed for electoral roll. It was held therein that the headscarf is an essential part of the religion.

The rules prescribed wearing of a dupatta for women and the state cannot dictate the manner of wearing that dupatta if a student wishes to cover her head with it. This is not just a case of essential religious practice. This is also a case of essential education for the girl child. The students were wearing the uniform. They only wanted to wear the head scarf of the same colour. Students silently wearing a hijab/headscarf and attending class cannot in any manner be said to be a practice that disturbs “public order” and is only a profession of their faith. 6

Hijab controversy: Legal Aspects

There is no provision for uniform in the Karnataka Education Act, 1983. Advocates referred to Rule 11 of the Karnataka Educational Institutions (Classification, Regulation and Prescription of Curricula Etc.) Rule, 1995, which makes provision for uniforms, books etc. are rules intended for schools. The 2006 Rules, which are applicable Pre-University, contains no provision for uniform. “uniforms are a school phenomenon, for students to be identified if they got lost or ran away from school. When students went to college, they stepped out of uniform and uniform in colleges came much later.” Even if a penalty is prescribed, the absolute expulsion of keeping children away is disproportionate under the Karnataka Education Act, penalties prescribed in the nature of fines. The government cited the Kerala High Court judgment in Fatima Thasneem V State of Kerala, where the court refused to direct a private school to allow Muslim students to wear head scarves, However, this judgment was in a different context; pertaining to a private school run by Christian management. Another case cited by Government is the Bombay High Court judgment in Fatheema Hussain Sayed V. Bharat Education Society. This is also not applicable to the instant case as that was in the context of an exclusive girl's school and the court held that a Muslim girl didn't need to cover her head while studying in all-girls schools. The third judgement cited in the GO (Government Order), delivered by the Madras High Court, was in a case where the uniform was imposed for teachers and Article 25 was not in issue in that case, as the issue was power to prescribe uniform for teachers. Contentions on behalf of the respondents/ Government Section 133 (2) of the Karnataka Education Act, 1983 grants the state to issue directives for government educational institutions to follow. Under this section, the Karnataka government issued a directive in 2013 making uniforms

compulsory for education institutions. The government passed an order on 5th February 2022 referring to the 2013 directive, the latest directive specifies that a headscarf is not part of the uniform.

Government Order (GO) of 5th February 2022 says: 1. A headscarf is not a part of the uniform. 2. Wearing a headscarf is not an essential religious practice for Muslims. Therefore, not protected by the Constitution. 3. GO cited three judgements from different High Courts to hold that banning the headscarf is not violative to fundamental rights, particularly freedom of religion. 4. The state has claimed that it’s only concerned to maintain uniformity, discipline and public order in educational institutions and not to interfere in any religious right. “the feeling of oneness, fraternity and brotherhood shall be promoted within an institution. In educational institutions, students should not be allowed to wear identifiable religious symbols or dress codes catering to their religious beliefs and faith. Allowing this practice would lead to a student’s acquiring a distinctive, identifiable feature which is not conductive for the development of the child and academic environment.” While apposing interim relief the advocate for the government argued that the government equally wants to resume classes’ however “we cannot start with one set of students coming with head scarfs and another set coming with saffron shawls. They must go back to status quo ante.” 7

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Supreme Court on Hijab controversy On February 11, the Supreme Court refused to hear a petition on the ongoing hijab controversy, even as the case is being heard before the Karnataka high court. Some international instances France veil ban case, 2014: similar issue were before the European Court of Human Rights. The court upheld the ban on the veils that cover the full face and head. Belgium veil band case, 2017: This time again ECHR upheld the ban. In both the European cases the similar arguments relating to “uniformity” were before the court. However, there are two basic differences: In both cases, the question was veil (naqab) which cover full face and hair. But in the present Karanataka case in India dress in question is a headscarf (hijab) that covers only the head and hair. These bans were upheld on the grounds of gender equality concerns. The court said in France case while upholding ban “preservation of the condition of living together” which allows persons to see and identify each other.” However, neither of these doctrines are valid when it comes to a Hijab. How common is the hijab in India? There are three popular forms of head covering among Muslim women- burqa, naqab and

hijab. According to Washington DC-based Pew Research Centre survey (held between 20192020 and published in June 2021), nearly twothirds of Muslim women wear a burqa or other form of the face or head cover in India. Wearing Hijab seems to be more common in the southern state. PEW reports that in Karnataka 71% of Muslim women and 42% of Hindu women cover their heads outside the home (pan India ratio is 89% of Muslim women and 59% of Hindu women). Previous controversy in Karnataka According to the BBC, the coastal belt of Karnataka has seen protests over hijab in the past but such issues were often quickly resolved. A second-year PU student at Moodabidri was disallowed from attending classes for an entire year in 2011–12 due to her insistence on wearing a hijab. There have also been instances of Hindu students protesting with saffron scarves to oppose Muslim students being allowed with hijab or burqa in classes. The Muslim women were said to have been anxious that their parents would not allow them to go to college without their religious clothing.

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Why in news here is a series of Public Interest Litigations (PILs) challenging the "marital rape exception" clause in Section 375 of the Indian Penal Code (IPC) that is being heard by the Delhi High Court. Petitioners prayed for nullification of exception of section 375 of the Indian Penal Code and to the criminalization of marital rape in India. In January 2022 the Delhi High Court started hearing these petitions together. The bench of Justice Rajiv Shakdher and Justice C. Hari Shankar is hearing these petitions.

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Key contentions on behalf of both parties The Petitioners: section 375 provides the exception of rape as “Sexual intercourse by a man with his wife who is above the age of 15, is not sexual assault.” According to the petitioners, this exception violates a woman’s right to dignity, personal and sexual autonomy and her right to self-expression enshrined under the Constitution of India. The Petitioners taking support from Justice J.S. Verma committee report, 2013 and 2017 Supreme Court judgment The state and Central Governments: The Delhi Government (advocate Nandita Rao) replied “the exception to section 375 does not violate the right of privacy and the dignity of married women. This exception does not leave a married woman remediless pursuant of forced sexual intercourse by her husband. And also that the exception does not compel a wife to have sexual intercourse with the husband. The woman subjected to sexual violence by her husband has several other criminal avenues available to her and therefore changing the IPC section is

not necessary. An affidavit filed by the Central Government stated that criminalising “marital rape” would “destabilise the institution of marriage and become a tool to harassment of husbands.” In a new affidavit filed on January 2022, the Government has taken the stance that consultation on this “contentious issue.” An NGO “Men’s Welfare Trust” and “Men’s Rights” are also opposing the petitions. Amicus Curiae (senior advocate Rebecca John and Rajshekhar Rao): nullification of exception (2) in not amount to creating a new offence and the court has to power to do so. What is marital rape? Though the law does not define this term. But in a general sense, this term is used to describe a sexual act committed by a spouse without another spouse’s consent. According to IPC, only a man can be accused of rape. Therefore “a sexual act committed by the husband without wife’s consent” is marital rape. The present law on marital rape? Section 375 exception defines a crime of “rape”. This section itself provides an exception as “Sexual intercourse by a man with his own wife who is above the age of 18, is not sexual assault.” Section 198 (6) in the Code of Criminal Procedure, 1973 “No Court shall take cognizance of an offence under section 376 of the Indian Penal Code, where such offence consists of sexual intercourse a man with his own wife, the wife being under fifteen years of age if more than one year has elapsed from the date of the commission of the offence.” It means the husband can be guilty of raping his wife only in two conditions: 1. If the wife is below 15 years, and 2. If wife living in judicial separation. In other situations, a husband does not have any legal obligation to take the consent of 9

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intercourse during her illness or other act which can be physically painful or emotionally humiliating for wife are some instances of sexual cruelty by husband committed on his wife. Section 319-338 of IPC provides penal provisions for the offence of hurt. These are general provisions and applicable to all. If the husband hurt his wife he can be punished under relevant general provisions. This remedy is available for the husband also. As said earlier only a man can be punished for the offence of rape. If such a crime is committed upon a man by a woman, then a woman can charge for the offence of hurt (and not for rape). Why marital rape should be declared a punishable crime? If the husband sexually exploits his wife to prove his dominance and strength, this can be a form of violation of the basic fundamental rights of life with dignity and privacy of a married woman. The fundamental “right of equality” is also violated when a married woman cannot get a remedy against her husband only because he married her. Marriage cannot grant a licence a husband to do whatever he wants to do with his wife.

A woman should always feel safe within the four walls of marriage. The emotional consequences of continued mental and physical torture by the husband is permanent and grave for a wife. The arguments have also raised the issue of a woman's autonomy and whether modern democracy can continue to rely on 17th-century legal principles that regarded women as "property of the husband," with no decisionmaking power or autonomy. 10

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his wife. In another word, if a man has intercourse with a woman above the age of 15 years, he can be punished, but the same man does the same act with the same woman after performing a marriage ceremony, then he cannot be punished and wife is remediless. It means marriage ceremony legalized an offence of rape. This is the basic argument forwarded for the criminalization of marital rape. Some other relevant legal provisions: Section 9 of Hindu Marriage Act- though this section is not directly related to marital rape. But the contention for challenging the legal validity of this section is similar. This section provides provisions for “restitution of conjugal rights”. The principle behind this matrimonial remedy is that matrimonial bond is associated with many legal and social obligations, therefore no spouse can withdraw from his/her matrimonial house or relationship unilaterally without any reasonable ground. This matrimonial relief originated from the old Roman law where the wife was considered as “husband’s property” and the state had obligation to deport her to her husband if she ran away from their matrimonial house. The validity of this section was challenged before the Supreme Court on the ground the similar ground as marital rape. Petitioner prefered contention that “to force a married woman to intercourse with her husband against her will is an amount to the derogation of her dignity and cruelty against her.” Though the court upheld the validity of this section and this relief is available for husband and wife equally. Sections 498A and 304B Indian Penal Code (IPC) - provides for cruelty by husband (or his relative). But this cruelty must be related to dowry demand. The Protection of women against domestic violence Act, 2005 (in short Domestic Violence Act, 2005) - is a comprehensive Act to protect women from four types of cruelties- physical, sexual, financial and mental cruelty. A wife can seek legal help in case of even sexual cruelty by husband. Unnatural sexual acts, to force wife to

Criminalization of Marital rape: An Overview

According to the statistics, 52 countries, including our neighbour Nepal, in the world have criminalized marital rape and have considered it as a criminal offence. The first country to criminalise marital rape was the Soviet Union in 1922. The J.S. Verma Committee, set up after the December 2012 Nirbhya case had recommended removing the marital rape exception (report submitted in 2013).

Gujarat High Court’s decision in Nimeshbhai Bharatbhai Desai vs. State of Gujarat (2018), (Justice J. B. Pardiwala) had said that the law must uphold the bodily autonomy of all women, irrespective of their marital status. The essence of an offence under the Domestic Violence Act or section 319-338 of IPC is cruelty and hurt. But the essence of an offence under section 376 is “consent”. Supporter of criminalization of marital rape, therefore, demanding nullification of above-mentioned exception of section 376 and not considering present law sufficient. Why marital rape should not be declared a punishable crime? Practically it is very hard to prove the “consent” or “not consent” under a conjugal relationship. The criminalization of marital rape can open a Pandora of litigation, but the court will have no strict criteria/measures to convict or acquit the accused husband. This may lead to further overburden on the judiciary system but none will get benefitted practically. Since the presence of “non-consent” in such a very private affair within the four walls is hard to prove. Therefore, ultimately the court will have to rely on some external or bodily injury or circumstantial evidence. On these grounds, even

at present, the wife can seek legal remedy under the Domestic Violence Act or relevant provisions of the Indian Penal Code or Matrimonial laws. Hence, present legal provisions are sufficient to protect the wife from any wrongful act of the husband. So, there is no use of a new law offence. Criminalization of such nature of private act may lead to increase false cases against the husband. Experience shows, in so many cases matrimonial disputes arise due to normal tear and wear of marital life, but the wife misuse antidowry law to achieve her goal. Family is the basis of a civilized society. This type of law may shake the very root of the family bond. Delhi Government has raised the issue of "social disharmony" and "damage to marriage and family systems" in its 2016 affidavit. Since rape is a serious offence, carrying long jail terms, it would have a very negative effect if the allegation were raised during a matrimonial dispute. To bring the heinous word “rape” in a marital relationship has the potential for serious misuse and harm to the reputation of the husband. It will not good for children born out from a relationship where their father was punished for such a heinous crime upon their mother. History of efforts to the criminalization of marital rape in India In 2013 justice J.S. Verma committee recommended to remove exception of section 375. The first Public Interest Petition was filed in the Delhi High Court in 2015 by an NGO “RIT Foundation challenging the legality of the “marriage exception.” In 2017 the Supreme Court held in a case that the marriage exception does not apply if the wife is under the age of 18. After that some more cases were pending on the same issue. Legal questions before the court Definition of consent: Consent is very difficult to decide in the matrimonial relationship because “implied con11

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sent”, “right to have sex” and “expectations of conjugal sexual relationship” is associated with marriage. Law admits this right to some extent. In such a situation the court has to set a balance between “conjugal rights” and “reasonable expectation of conjugal rights.” The further question is that can ‘implied consent’ in a marriage be considered as ‘irrevocable consent’, or “a woman can have the freedom and choice to say "No?"

Intelligible differentia: The bench during the hearing repeatedly raised the question of whether the "difference" between a marital relationship and an act done outside of marriage can be considered an "intelligible differentia" under article 14, which allows the law to apply different rules to married and unmarried women? Definition of rape: To define rape by a husband on his wife is a difficult question because in law rape by a "relative" or a "person in a position of authority and trust" is now considered a much more serious offence, punishable by harsher penalties. The repeated rape of a woman by the same person is also considered an aggravated offence, carrying harsher punishment than a single incident.

If an exception will be removed then the husband will fall in these categories. Further question is that can a husband be charged under section 511 of IPC for “attempted rape?” can a husband be punished under section 377 for “unnatural offences” with his own wife? 4. Evidence to prove the crime: It is difficult to prove where both parties live in the same room and have regular intercourse. 5. Striking down exception whether create a new offence? Removing a marriage exception will practically create a new offence called “marital rape”. Court has to consider whether the judiciary has the power to create a new offence or leave it for the legislature. Though both Amicus curiae are agreed that this does not amount to creating a new law or new offence. Conclusion The Delhi High Court is hearing a challenge to the constitutional validity of the ‘marital rape immunity under the Indian Penal Code. The case has put the spotlight on crucial issues concerning consent, the extent of state control on female sexual autonomy, and correcting historical prejudices in law. Though this matter is sub-judice, therefore, it is not appropriate to conclude, however, both parties have some valid points. Let us wait for the Court's decision. ——

Some facts about supreme Court of India  

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Date of establishment: 1 October, 1937 as federal court of India under the Government of India Act, 1935. After independence Federal Court of India declared as Supreme Court of India on 28.01.1950). Being the Supreme Court of India this replaced the Judicial Committee of the Privy Council as the highest court of appeal since 28.01.1950. From 1937 to 1950 it has seat at the “Chamber of Princes” in the Parliament building. In 1958 it moved to present premises. Motto: यतो धर्मस्ततोजयः (Where there is dharma (rightness), there is victory) Number of judge: 34 (one chief justice of India & 33 judges)

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This case was registered as Pooja Gupta v. Bar Council of India. In this petition, they sought 30% reservation for women advocates in the Bar Council of India (BCI) and state bar councils. On this ground, the petitioners sought quashing of the notification dated 14.01.2022 by BCI to hold elections to elect office bearer of BCI. On 04.02.2022 the Supreme Court rejected this plea SUPREME COURT APPROVED THE PARSI CUSTOMS OF LAST RITES FOR THE BODY OF COVID VICTIMS

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he Parsi community has its special religious customs for the disposal of the dead body (called Dokhmenashini). They do this in an open tower called Dokhma or tower of silence. While rising risk of a pandemic the Supreme Court took suo motto consideration of the health issue of the prisoner in overcrowded prisons. The State/Union Territories were directed to constitute a high powered committee to determine prisoners who could be released on parole or interim bail. Several 13

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PLEA FOR 30% RESERVATION OF WOMEN ADVOCATES wo practising advocates from the state of Himachal Pradesh and the state of Kerala filed a petition in Supreme Court.

Due to a separate protocol for disposal of the body of the COVID victim, it was not possible to dispose of such body in an open place. Therefore, a petition was filed in the Supreme Court. This case was registered as Surat Parsi Panchayat Board v. Union of India. On 04.02.2022 the court allowed the Parsi community to perform Dokhmenashini in the Dokhma for COVID victims as per their customs. However, some guidelines were prescribed for safety purposes. Iron grilles to be placed over Dokhmas (tower of silence) is one of such safety measures. SUPREME COURT ON THE PRISONERS RELEASED DUE TO COVID-19 On 10.02.2022, the Supreme Court asked the State of Kerala to not insist on prisoners already released on interim bail or parole to surrender. At the same time court clarified that it was not willing to release any more prisoners at the moment on the plea of the COVID-19 situation in the prisons. A Bench comprising Justices L. Nageswara Rao and B.R. Gavai stated that it would evaluate the COVID-19 situation on the next date of hearing i.e., 25.02.2022 and accordingly decide if the prisoners can be asked to surrender.

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prisoners were released on parole after scrutiny. On 07.05.2021, the court extended the parole for prisoners who were released on the recommendation of the Kerala High Powered Committee for 30 days. Eventually on 16.07.2021. Accordingly, the Government of Kerala extended parole from time to time. In September 2021, the Jail Authorities in Kerala orally asked prisoners who were released on parole to surrender. Aggrieved, they had approached the Supreme Court as Dolphy v. State of Kerala [W.P. (C) No. 1067 of 2021] and connected matters. The interim order come in this case on 10.02.2022. SUPREME COURT SOUGHT ADVICE ON HEARING PETITIONS PENDING IN HIGH COURTS AGAINST STATE LAWS Haryana government passed a law (Haryana State Employment of Local Candidates Act 2020, notified on November 6, 2021) that provided 75% reservation for local people in the private sector. Faridabad Industries Association (FIA) filed a petition against this. After hearing this case the Punjab & Haryana High Court stayed this law vide interim order on February 3, 2022. The state of Haryana filed a special leave petition in the Supreme Court against the High Court order. The bench comprising Justice L. Nageshwara Rao and B.R. Gavai was hearing this case. Solicitor General of India Tushar Mehta, appearing for the state of Haryana, submitted that a statute has been stayed after hearing him for only 90 seconds and by an unreasoned order. The bench pointed out that there was news in a newspaper that the state of Andhra Pradesh and Jharkhand have also passed similar laws providing for domicile reservation. These laws also have been challenged before the High Courts. Therefore, the bench asked if all those matters could be transferred to Supreme

Court to decide the larger issue. Justice L. Nageshwar Rao sought the views of Solicitor General Tushar Mehta (appearing on behalf of petitioner) and senior advocates Dushyant Dave and Mukul Rohatgi (appearing on behalf of the respondents). Mr Dave agreed that the Supreme Court can hear after transferring the matters, while Rohatgi sought time. The matter is adjourned for 14.02.2022. (11.02.2022, state of Haryana v. Faridabad Industries Association (FIA). SUPREME COURT DIRECTED MPSC TO CONDUCT THE EXAM AFRESH On 11.02.2022 in the case titled “The State of Manipur etc. and Ors. V. Shalini Chingtham and Ors. [Diary No. 5680-20210], the bench of Justice A.M. Khanwilkar and C.T. Ravikumar directed Manipur Public Service Commission (MPSC) to conduct Manipur Public Service 2016 (Main) Exam afresh. This exam has to be conducted within four months from the date of order.

Only those candidates who had appeared in the main exam conducted in 2016 will be eligible to appear in the proposed exam. The candidates who are already got an appointment based on the main exam held in 2016, if clears this exam, then they would be given the continuity of service and consequential benefits after being appointed against the concerned post. This order came in the petition filed by the state of Manipur against the order of the high court quashing the said exam and direction to conduct the main exam afresh. The Supreme Court held the order of the High Court. —— 14

THE CONSTITUTION (SCHEDULED TRIBES) ORDERS (AMENDMENT) BILL, 2022 (BILL NO. 21 OF 2022) On February 7, 2022, the Minister of Tribal Affairs Mr Arjun Munda introduced this bill in Lok Sabha. The preamble of this Bill stated “This further to amend the Constitution (Scheduled Tribes) Order, 1950 for inclusion of the certain community in the list of Scheduled Tribes in relation to the State of Tripura.” This Constitution Amendment Bill seeks to

amend the Constitution (Scheduled Tribes) Order, 1950. This order specifies the tribes and tribal communities deemed to be Scheduled Tribes in various states and union territories. The objective of this Bill is to amend Part XV of the Schedule which specifies the Schedule Tribes in Tripura. It includes the Darlong community as a sub-tribe of the Kuki tribe in the list of Schedule Tribes in Tripura. The central government can enact such law as per under Article 342 of the Constitution of India. Article 342 of the Constitution provides as under:— “342. Scheduled Tribes.—(1) The President may with respect to any State or Union territory, and where it is a State, after consul-

tation with the Governor thereof, by public notification, specify the tribes or tribal communities or parts of or groups within tribes or tribal communities which shall for the purposes of this Constitution be deemed to be Scheduled Tribes in relation to that State or Union territory, as the case may be. (2)Parliament may by law include in or exclude from the list of Scheduled Tribes specified in a notification issued under clause (1) any tribe or tribal community or part of or group within any tribe or tribal community, but save as aforesaid a notification issued under the said clause shall not be varied by any subsequent notification.”. According to the provisions of article 342 of the Constitution, the first list of the Scheduled Tribes was notified during the year 1950 in respect of various States and Union territories, vide the Constitution (Scheduled Tribes) Order, 1950. This list was modified from time to time. List of Scheduled Tribes of the State of Tripura has been modified, vide, the Constitution Scheduled Castes and Scheduled Tribes Orders (Amendment) Act, 2002 (10 of 2003). The State Government of Tripura has requested to include “Darlong” community as a sub-tribe of “Kuki” in entry 9 in the list of Scheduled Tribes in respect of State of Tripura. On the basis of recommendation of the State Government of Tripura, it is proposed to modify the list of Scheduled Tribes in respect of State of Tripura by amending the Constitution (Scheduled Tribes) Order, 1950. ——

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Case title: R. Valli Vs Tamil Nadu State Transport Corporation Ltd. Case No.: CA 1269 of 2022 Date of Decision: 10 February, 2022 Bench: Justices Hemant Gupta and V. Ramasubramanian Case law: the method of determination of Motor Accident Compensation under Motor Vehicles Act, 1988 is erroneous. This method determined compensation applying two multipliers which are erroneous. The age of the deceased should be the basis for applying the multiplier [referred to National Insurance Company Limited v. Pranay Sethi & Ors (2017) 16 SCC 680] On this finding, the Supreme Court asked the Centre to revise the 40-year-old rule related to a motor accident claim.

Present method: The amount of ₹20 lakh or ₹2,500 per vehicle was fixed in October 1982 under the Motor Vehicles Act, 1939 and the same has not been revised since. This rule restricts states from maintaining funds up to ₹20 lakh for paying compensation claims to victims of road accidents involving state-run vehicles. When the Motor Vehicle Rules were framed in 1989, the amount was introduced under Rule 152. Amicus curiae N. Vijayaraghavan emphasises the fact that this figure is unrealistic. He informed the court that in Tamil Nadu, the total

tune of ₹400 crores. Realising the dearth of funds available with the state road transport corporations, the apex court had on November 16, last year directed state governments to contribute additional equivalent to meet compensation claims paid across the past three financial years sum to the corpus. The court direction was to be complied with by all states by February 15. However, Andhra Pradesh and Telangana road transport corporations appealed to the court to modify its directions. They claimed that the additional corpus would add a huge financial burden on the states. The court dismissed their applications for modifying its order and instead granted the applicants and all other states time till April-end to comply with its order. Court also allowed states the liberty to explore the feasibility of insuring their entire fleet of buses/vehicles. But there is also a problem with the provision of section 146 of the Motor Vehicles Act. The Act granted exemption from insurance to state-operated vehicles. The amicus curiae pointed out that due to Section 146 of the Act, insurance companies refused to offer thirdparty insurance cover. Facts of the case The Motor Accidents Claim Tribunal allowed an accident claim amount applying of a multiplier of 3 up to the date of superannuation and thereafter multiplier of 8 keeping in view the dependency of life for 10 years. Madras High Court affirmed the findings recorded by the Motor Accidents Claim Tribunal. Petitioner (Claimant) filed an appeal in Supreme Court. The Supreme Court allowed the appeal and set aside the order of the High Court. The Division Bench (two-judge bench) of the Supreme Court held that the claimants are entitled to compensation of Rs. 24,33,064/- with interest @ 9% from the date of filing of the claim appli16

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Supreme Court asked Centre to revise Rules dues payable by the state road transport corporation in cases settled by Lok Adalats was to the relating to motor accident claims

Streaming Case Laws

cation till realisation. The Supreme Court observed that the method of determination of compensation applying two multipliers is erroneous. The suitable multiplier is to be applied keeping in view the age of the deceased.

Supreme Court held insurance company cannot repudiate a claim merely for the delay in intimation Case Title: Jaina Construction Company Vs Oriental Insurance Company Limited Case No.: Civil Appeal No. 1069 of 2022; Date of Decision: 11.02.2022 Bench: Justices Sanjiv Khanna and Bela M. Trivedi Case law: if the insured had lodged the FIR immediately after the theft of the vehicle. The insurance company cannot repudiate the claim on the ground that there was a delay in intimating the insurance company. Facts of the case: An insured vehicle was robbed. Owner ledged First Information Report (FIR) on the next day. The accused were arrested and challan filed. Then the complainant filed his insurance claim. This claim was repudiated on the ground that there was a delay in intimating the insurance company about the occurrence.

The complainant filed a consumer complaint. The District Forum and state consumer commission allowed the complaint. The company filed Revision in the national commission. The National Commission (NCDRC) set aside the order of state commission. The aggrieved complainant filed an appeal in the Supreme Court. Supreme Court upheld the state commission order and set aside the order of the National

Commission. The court observed, “It is pertinent to note that the Insurance Company has not repudiated the claim on the ground that it was not genuine. It has repudiated only on the ground of delay. When the complainant had lodged the FIR immediately after the theft of the vehicle, and when the police after the investigation had arrested the accused and also filed challan before the concerned Court, and when the claim of the insured was not found to be not genuine, the Insurance Company could not have repudiated the claim merely on the ground that there was a delay in intimating the Insurance Company about the occurrence of the theft.” The reaffirmed three judges bench judgements in the case Gurshinder Singh v. Shriram General Insurance Company Ltd & Another [2020 (11) SCC 612].

Supreme Court on life imprisonment till last breath as substitution of death sentence Case title: Ravindra v. Union of India Case No.: WP (Crl) 45/2022 Date of Judgment: 11 February, 2022 Bench: Justice Sanjay Kishan Kaul and Justice M.M. Sundresh Involved provisions of law: Articles 72, 161- Constitution of India Sections 432, 433, 433A- CrPC Section 45, 53- IPC Case law: there can be an imposition of life imprisonment without any remission till the last breath as a substitution of a death sentence. Facts of the case: the period of life sentence sometimes appear as a vague area of law that is not very clear. Union of India v. Shriharan (2016) and Swamy Shraddhananda v. the State of Karnataka are the leading cases on this question. In the present criminal writ petition Ravindra v. Union of India there were three pleas on behalf of the accused/petitioner- reconsideration of the judgment of Union of India V Hariharan (2016), juvenility of the accused and parole for four weeks to search for the documents in favour of his juvenility. 17

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First of all the Court considered case law held in Union of India v. Shriharan (2016) 7 SCC 1. In this case, there were two issues considered by the Constitution Bench (five-judge bench): First, whether imprisonment for the life in the terms of section 53 read with section 45 of the IPC meant imprisonment for rest of the natural life or the prisoner (convicted) has a right to claim remission; Second, whether a special category of sentence may be made for the very few cases where the death penalty might be substituted by the punishment of imprisonment for life or imprisonment for a term above fourteen years and to put that category beyond application of remission? The constitution bench held by the majority of 3:2 that: 1. Imprisonment for life in terms of section 53 read with section 45 of IPC only means imprisonment for rest of life. The right to claim remission, commutation, reprieve etc. as provided under Articles 72 and 161 of the Constitution will always be available as constitutional remedies. The court has no role in this. 2. The ratio laid down in Swamy Shraddhananda v. the State of Karnataka that a special category of sentence, i.e. instead of death can be substituted by the punishment of imprisonment for life or a term exceeding 14 years and put that category beyond application of remission is well-founded.

This judgement was given by the majority (consisting of CJI H. L. Dattu, Justice Fakkir Mohammad Ibrahim Kalifula and Justice Pinaky Chandra Ghose). The minority (Justice U. U. Lalit, Justice A. M. Sapre) was agreed that it would not be open to the court to make any special category of the sentence in substitution of the death penalty and put that category beyond application of remission, nor would it be permissible to stipulate any mandatory period of actual imprisonment inconsistent with the one prescribed under section 433A of CrPC. However, the court rejected the plea to look into the ratio of this case saying “We are not persuaded on the issue that the minority view in a judgment of this Court in Union of India V. Sriharan [(2016) 7 SCC 1] should be looked into as two of the Judges opined one way in the Constitution Bench. Once the majority opines in a particular matter that is the judgment of the Constitution Bench.” Thus the court rejected the first plea on behalf of the accused. The second plea was of juvenility. The accused Ravindra was 17 years of age at the time of the incident. The same is recorded in the order passed based on Section 313 of the CrPC statement but possibly no further investigation took place on this behalf as, at that time, the age of juvenility was 16 years. The plea of juvenility can be raised at any time. Advocate for the petitioner/accused asked for parole for four weeks as the petitioner has no family to search for the documents. Therefore the court has issued a notice in the writ petition on the limited issue of juvenility and parole. ——

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A

Association v. Union of India and Ors. In this petition, the legal issue is whether once the Chief Justice of India has decided to grant a 'Court Allowance' to the employees of the Apex Court, and sought the approval of the President under Article 146(2) of the Constitution for the same, can the Ministry of Law and Justice arbitrarily refuse approval, without assigning any reasons or referring it to the President. The bench of Justice D.Y. Chandrachud and Surya Kant issued notice to the respondents- "Issue notice. Liberty to serve the first (Department of Justice) and second (Department of Expenditure) respondents through the central agency. Service on the Secretary-General of the Supreme Court of India may be effected dasti.” Petition in Supreme Court for an alternate mode of assessment for class 10 and 12 boards A writ petition titled Anubha Shrivastava Sahai v. Union of India and others has been filed in Supreme Court. Petitioner is a child rights activist. Petitioner sought the issuance of direction to the State Boards, CBSE, ICSE, NIOS, who are going to conduct board exams for 10th and 12the in offline mode, to pass a notification on regarding alternate mode of assessment instead of offline exams. The petition sought relief for conducting an improvement exam for those who are not satisfied with the internal assessment. It further sought of the constitution of a committee for deciding the formula of assessment of students including compartment students and declaring the result within a time limit and deadline. Direction for UGC to constitute a committee to declare the date for admission into various universities and a formula for assessment of class XII students who want to pursue their further studies in non-professional courses by conducting an aptitude test or some other mode of assessment within a time limit and deadline. Supreme Court rejected to hear plea challenging provisions of RTE Act, 2009 A case titled Ashwini Kumar Upadhyay v. Union of India [W.P. (C) 1382 of 2021] had been filed last year in the Supreme Court. In the writ petition, the petitioner challenged the validity of section 1(4) and 1(5) of the Right of Children to Free and Compulsory Education Act, 2009 (RTE Act) on the ground that they violate Article 14, 15, 16, 21, 21A and the Preamble of the Constitution to the extent 19

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Ravi Mittal appointed as chairperson of IBBI former secretary at the Department of Sports, Ravi Mittal has been appointed as chairperson of the Insolvency and Bankruptcy Board of India (IBBI). The appointments committee of the Union Cabinet has approved his appointment. This post has been vacant since September 30, 2021. Supreme Court upheld an order of Bombay High Court in the UAPA case On August 13, 2021, the Bombay High Court had granted bail to a 28-year-old man, Iqbal Ahmed Kabir Ahmed, who challenged an order of a special court refusing bail to him. Ahmed was arrested on August 7, 2016, and booked under the stringent provisions of the UAPA (Unlawful Activities Prevention Act) for being part of banned terror outfit- Islamic State (ISIS) and under the Indian Penal Code (IPC). The high court had quashed and set aside the special court’s order that had denied bail to Ahmed and granted him bail. The court directed Ahmed to appear before the National Investigation Agency (NIA) twice a week for the first month and then once a week for the next two months. While giving reasoning the high court gave reference to Shreya Singhal case about fundamental rights. The state filed appeal in the Supreme Court against the order of the Bombay High Court. Solicitor General Tushar Mehta submitted before the court that his only concern was the reference of Shreya Singhal judgment. A bench of Justices D Y Chandrachud and Surya Kant heard this matter on February 11, 2022. Bench held “it is good judgement and the High Court has given enough reasons to arrive at its finding.” However, the reference to Shreya Singhal judgment was unnecessary. “Even without Shreya Singhal reference, which was unnecessary, the judgement could be sustained.” On March 24, 2015, a bench of Justices J. Chelameswar and R.F. Nariman ruled in Shreya Singhal v. Union of India declared Section 66A unconstitutional for “being violative of Article 19(1) (a) and not saved under Article 19(2).” Can government reject CJI’s recommendation for Court Allowance? This question arose before the Supreme Court in the case titled Supreme Court Employees Welfare

THE STREAMING LAW/FEBRUARY-2022

that it excludes Madrasahs and Vedic Pathshalas from its ambit. The bench of Justice L. Nageswar Rao and B.R. Gavai rejected the petition stating the petitioner to approach the High Court under Article 226 of the Constitution of India raising all the issues that he had raised in the present petition. Bench permitted to withdraw this writ petition stating “we have not expressed any opinion on merit.” Supreme Court pulled up UP govt. for the acting arbitrary manner in recovery notices to anti-CAA protesters On February 11, 2022, the Supreme Court pulled up the Uttar Pradesh government for acting on the notice by the district administration in the state to alleged anti-CAA protestors for recovering losses caused by damage to public properties during agitations in December 2019. The bench of Justice D.Y. Chandrachud and Justice Surya Kant Said “you are the complainant, prosecutor, and adjudicator” A writ petition titled Parvaiz Arif Titu v. The State of Uttar Pradesh was filed in 2021 in the Supreme Court seeking to quash the notices issued by the District Administration of State of Uttar Pradesh to recover damages for the public loss caused to public property. These notices were connected to December, 2019 protests against Citizenship Amendment Act, 2019 and NRC. Allegedly, on December 19, 2019, in Lucknow and other parts of the state caused many causalities and substantial loss to public and private property, including government buses, media vans, motorbikes, etc. The impugned notices were issued according to the 2010 verdict of the Allahabad High Court in Mohammad Shujauddin v. State of UP [W.P. NO. 40831/2009]. In this case, the High Court held that in case of destruction of public property, a competent authority nominated by the government has to assess the damages and receive claims from the public. The present petition challenging this order of High Court stating it as “violation of the guidelines passed by the Supreme Court in In Re Destruction of Public and Private Property v. Govt. of Appellant [(2009) 5 SCC 212. In this judgement the Supreme Court has issued guidelines stating in absence of state Legislation to recover such damages on account of violence, the High Court may take cognizance of incidents of mass damages to public property on its

own in suo moto action and set up the machinery to investigate and award compensation. A sitting or retired High Court Judge may be appointed as a Claimed Commissioner to estimate the damages or probe liability. Such a commissioner can take evidence on the instruction of the High Court. Once the liability is assessed, it will be borne by the perpetrators of the violence and the organisers of the event. The petition has asserted that the high court order is contrary to the Supreme Court ruling inasmuch while the Supreme Court put the onus of assessment of damages and recovery from the accused on High Court of every state, the Allahabad High Court on the other hand had issued guidelines in that let the State Government undertake these processes. The petitioner pointed out that the notices have been issued in a very arbitrary manner since no details of FIR or any criminal offences have been made out against the person to whom the notices have been sent. The petitioner has also sought direction to institute an independent judicial inquiry to probe into the incidents that occurred during the protests against the CAA-NRC. The bench noted that the UP assembly passed an Uttar Pradesh Recovery of Damages to Public and Private Property Bill in March, 2021. Under the law, protesters were found guilty of damaging public and private properties by Claims Tribunals headed by retired district judges. The guilty will face imprisonment of one year or a fine ranging from Rs. 5,000 to Rs 1 lakh. The court had earlier observed that the notices can no longer be acted upon in view of the new legislative regime in UP on the subject. On February 11 the bench asked the advocate for the UP government about the status of the proceedings initiated in December 2019, before the introduction of the legislation. Justice Sudhir Agarwal said that “those directions (by High Court in Mohammad Shujauddin case) were supplementary to those of the Supreme Court (laid down in In Re Destruction of Public and Private Properties case).” The bench said "Now, there is no provision in the new law for the transfer of cases which were decided! And no provision for appeal under the new Act! These poor people, whose properties have been attached, will have no remedy! ... … You have to follow due process of law. Ultimately, there has to be some guarantee of due process also." 20

T

here are four stages of committing any crime- (1) making an intention to commit that criminal act, (2) preparing for the fulfilment of that intention, (3) attempting that act and (4) doing the act. The first two stages of an offence- intent and preparation are generally not punishable because they cannot be proved but if he makes any effort for it, then it becomes punishable. If the doer succeeds in his intention, then he will be punished with prescribed punishment for that criminal act, but if, for some reason, he does not succeed, then he tries to commit the offence, which is punishable in certain cases.

Chapter 23 (Section 511) of the IPC lays down general rules regarding punishment for attempts. The IPC specifically makes punishable the attempt to commit several offences. For example, Sections 307, 308 and 309 of Chapter 16 specifically provide for punishment for special types of offences (murder, culpable homicide and attempt to commit suicide, respectively). But section 511 is such a general provision that makes rules for punishment for the attempt of offences other than those for which there is no special provision for the attempt. These sections can be understood more clearly from the interpretation made by the Supreme Court in the following case.

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Introduction

Case Law

Asghar Ali Pradhaniya Vs Emperor [AIR 1933 Cal 893] The complainant was a 20-year-old divorced woman who lived in her father's house. She had an affair with a married person (appellant) in the neighbourhood, as a result of which she became pregnant. The appellant did not fulfil his promise to get married and advised her to get an abortion. The appellant gave a powder and a liquid substance to the complainant for consumption. But the complainant did not take these medicines out of fear. The next day the appellant himself tried to make her drink the medicine by force. The complainant opposed this and on hearing her scream, many people gathered. The appellant was booked for an attempt to abortion under section 312 read with 511 of the IPC. The trial court acquitted her of the charge of abortion but found her guilty of an attempted abortion. The appellant appealed against this decision. Mainly two types of arguments were made by the appellant in his defence1. The complainant also wanted to terminate the foetus. She was only afraid for her life. Therefore, she was a co-offender and therefore her evidence should be considered credible only after being corroborated by other evidence. But there was no such evidence. 2. The appellant was not an "attempt" to commit the offence. According to the Court (Lord Justice William) the staunch resistance of the lady (complainant) to the drug being administered by the accused, proved that she was not a cooffender but a victim in the crime. 21

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For the second argument, the court made a detailed discussion regarding the attempt to commit the offence (which is punishable). The Court referred to some of the leading English cases, and also pointed out that the principles adopted in these cases are at variance with the principles applicable in Section 511 of the IPC, as is evident from its illustration. Therefore in India section 511 will, and not the principle of these English case laws will apply. In the present case, two drugs are used for abortion- copper sulphate powder and some liquid. The quantity of powder was not sufficient to cause abortion. No toxin was detected in the liquid. The Court, after considering these facts, considered section 511. According to its illustration, if a person breaks a box to steal jewellery but does not find the jewellery there, he will still be guilty of attempted theft. The second illustration states that if a pick-pocket puts his hand into someone's pocket intending to steal but is unable to steal anything because the pocket is empty, he will still be punishable under section 511 for an attempt to theft. After this, the court considered some English case law. In R. Macpherson [1857 D&B 202] case, the accused entered the house of the complainant to steal certain cattle but he could not do the theft as the cattle were already stolen. Chief Justice Cockburn found him not guilty. Because, according to him, effort denotes an act which if it had been successful would have committed the offence. But in this case, the act of stealing cattle never succeeds. Chief Justice Cockburn applied the same principle in another case, R. Versus Colis [(1864) 10 LT 581]. In this case, the accused put his hand in the pocket with the intention of stealing but due to the pocket being empty, he could not succeed in it. Therefore he was not guilty. But the illustration of section 511 of the IPC provides the opposite. There are four stages to the commission of any offence- (1) making an intention to cause the offence, (2) preparing for it, (3) attempting to cause it, and (4) if the attempt is successful, then that Causing a crimi-

nal act. Although intention and preparation are not punishable, if some actual work is done towards the fulfilment of this intention, then it becomes punishable. That is why if the accused puts his hand in someone's pocket with the intention of stealing, it is an act on his part towards the commission of the intended offence. It is irrelevant whether there is something in the pocket or not. The fact of nothing in the pocket was not known to him and this fact was also not under his control. On the other hand, if the accused believes in magic and, with intent to injure any person, curses him, or recites any mantra, or burns his effigy, then even if he intends to cause harm, he shall not be liable to cause injury under this section. Cannot be convicted of an attempt to commit an offence. Because the effort is not in the direction of causing the intentional offence, but for such an act which according to common experience cannot cause injury to any person. Here the failure of the attempt will be the result of his own act. For example, if a person intends to give poison to kill someone but gives any such substance which is harmless, he shall not be held guilty of attempt to murder [Empress Vs Rupsar Panku (1895) 9 CPLR (Cri) 14] But if any third person unknowingly removes the toxic substance and puts some harmless substance, then in this situation he will be considered guilty. The essential element in Section 511 is not only the failed attempt but the "some act to be done in the furtherance of the direction of causing the criminal act". After the above discussion, the court reconsidered the facts of the present case. The appellant intended to feed the complainant any such substance which would cause her abortion. But neither the power nor the liquid is given by her was so injurious as to cause a miscarriage. The failure of the offender to act was the result of his own actions and hence no action was taken towards the commission of the offence. Therefore, the court set aside the order of the lower court and acquitted the appellant. —— 22

Question: I have converted barsati of my DDA flat into one room set. Now I want to let out this. Is alteration of such nature is allowed? (Abha Jha, Vasant Kunj, Delhi) Answer: DDA (Delhi Development Authority) has been constructing homes in notified areas and also allows modification in these flats to suit the need of growing families. However, there are certain rules to make these additions and alterations. DDA divides alteration into three categories. These are: The modification allowed without permission (Condonable changes) This includes converting the existing barasati into a room, fencing and proper fixing arrangements of grills, increasing the height of front or rear courtyard up to seven metres, etc. interior improvements such as flooring, wall shelving, false ceiling and open staircase construction are also allowed to suit the needs of the owners. Residents can also arrange for a separate water supply system and a ramp without disturbing the common passage area. These modifications do not require structural changes and can be carried out by the owner without any prior permission for DDA or MCD. The modification allowed with prior permission Allottees of one stack can jointly for changing the position of the kitchen or bathroom with proper connection, subject to structure safety. Converting open terraces with sloping roofs with lightweight material and building an additional bathroom in the rear courtyard also can be done with prior permission from the housing authority (DDA). In case of single-storeyed flats, subjection to building bye-laws and prior approval of the local authority the entire premises can be redeveloped. For additional coverage, the allottee needs prior permission from DDA. The rule relating

to additional coverage are as under: Covering of courtyard and floor-level terraces, allottee needs prior approval from DDA. Owners of three or four-storeyed flats have the right to cover the area available as the coverage of floor level terraces. Residents staying in that particular vertical stack have to get their consent and jointly apply for permission. In two-storeyed flats, the allottee on the first floor cannot construct above the ground floor courtyard. They can use the roof terrace for additional coverage as permissible. A barasati of size equivalent to the room below is allowed ensuring the construction of a wall over wall. However, other residents should have the access to the maintenance of water tanks, plumbing systems and TV antennas, etc. All the other kinds of construction will be decided on these principles: 1. No encroachment on public land is allowed; 2. The additional construction should not pose any threat to the structural safety of the building; 3. Light and ventilation of the unit should not be hindered; 4. There is no infringement of other owner's right; 5. The service elements such as manhole, rainwater fittings and sanitary fittings are not disturbed; 6. The existing additional covered area can be regularised by the owner if the changes are made according to the prescribed norms. As discussed above you can cover barasati on the terrace but you cannot build a complete room set in a manner that other co-users' right can be disturbed. —— 23

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1. The calling of at least one attesting witness to prove a document under Section 68 of the Indian Evidence Act is not necessary: a. when the document other than a Will is registered under the Indian Registration Act, 1908 b. when the document including Will is registered under the Indian Registration Act, 1908 c. when the document irrespective of whether it is a Will, is registered under the Indian Registration Act, 1908 both (a) & (c) are correct. Answer: (a)

4. The Narco-Analysis technique involves the intravenous administration of:: a. Sodium Pentothal b. Potassium Pentothal c. Magnesium Pentothal d. All of the above. Answer: (a) 5. The evidence unearthed by the sniffer dog falls under: a. oral evidence b. documentary evidence c. hearsay evidence d. scientific evidence. Answer: ©

2. Which statement is true in relation to a child 6. A non-testamentary document is one: witness? a. Which is intended to take effect or be opera. A child of tender age can be allowed to testify ative immediately on its execution if he has intellectual capacity to understand b. Which is final questions and give rational answers thereto c. Which is irrevocable b. A child witness may be easy prey of tutoring d. All of the above and when it is established that he is under the e. Which is revocable. influence of tutoring it is not safe to solely rely Answer: (d) on his evidence c. The law recognizes the child as a competent witness but a child of a tender age of six years 7. What is the effect of opinion of the experts upon the court? is not considered by the Court to be a witness a. Binding on the judge whose sole testimony can be relied without b. Only advisory in nature other corroborative evidence c. The judge can form an opinion contrary to d. All above statements are true. that of expert Answer: (d) d. Both (b)&(c) e. None of the above. 3. Under Section 145 of Evidence Act, a witness may be contradicted as to previous statement Answer: (d) in writing: a. without proving the same but only after show- 8. Use of violence by a member of unlawful assembly, in furtherance of their common object ing the same to the witness will constitute offence of: b. after proving the same may be before showing a. Assault the showing the same to the witness b. Rioting c. after proving the same & showing the same to c. Affray the witness d. All of the above d. without proving the same and without showe. None of the above. ing the same to the witness. Answer: (b) Answer: (a) 24

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HARYANA JUDICIARY PRELIMS 2018

9. The general rule is that leading questions cannot be asked during examination in chief. However, there are some exceptions to this rule. Choose the exceptions: a. any question at the discretion of judge b. as to matters which are introductory or undisputed c. as to matters which have already been sufficiently proved d. Both (b) &(c) e. None of the above. Answer: (d)

d. Both (A) & (B). Answer: (b) 14. Under Section 116 of the Evidence Act, the tenant is stopped from denying: a. This title to the property of the actual owner b. The title to the property of the landlord c. Both (A) & (B) d. None of these. Answer: (b)

15. The test of ascertaining the burden of proof 10. Secondary evidence of a document is admissi- lies on the person who would fall if that part is ble in evidence as a substitute for: not proved is contained in Section_____of Evia. Inadmissible primary evidence under cer- dence Act. tain circumstances a. 202 b. Admissible primary evidence b. 203 c. Both (a) & (b) c. 102 d. None of these. d. 101. Answer: (b) Answer: (c) 11. As per the Evidence Act, admissions: 16. Section 124 of the Evidence Act provides for a. Are conclusive proof of the matters adprivileges in respect of: mitted a. Official Communication b. Are not conclusive proof of the matters adb. Professional Communication mitted but operate as estoppel c. Communication as to the information of c. Are conclusive proof of the matter and also commission of offence operate as estoppel d. None of the above. d. None of the above. Answer: (a) Answer: (b) 17. In execution of a decree for the maintenance, salary of a person can be attached to the extent 12. In criminal trials, the accused has to establish of: his plea for the mitigation or justification of an a. one fourth offence: b. one third a. Substantially c. two third b. Beyond reasonable doubt d. one half. c. Prima facie Answer: © None of these. Answer: (a) 18. The Commissioner appointed for the purposes of recording evidence (cross- examination) is 13. All statements which the court permits or re- obliged to submit his report to the court appointquires to be made before it by witness in relation ing the commission within: to matters of fact under inquiry is/are: a. 15 days from the date of issue of the coma. Primary evidence mission b. Oral evidence b. 30 days from the date of issue of the comc. Hearsay evidence mission 25

THE STREAMING LAW/FEBRUARY-2022

c. 60 days from the date of issue of the comthe minor mission b. Valid d. 90 days from the date of issue of the comc. Void mission. d. Voidable. Answer: (c) Answer: (a) 19. Where a mortgagee obtains a decree for payment of a money in satisfaction of claim arising under the mortgage: a. he is entitled to bring the mortgage property to sale without instituting a suit for sale in enforcement of the mortgage under Order 34 Rule 14 CPC b. he is entitled to bring the mortgage property to sale only by instituting a suit for sale in enforcement of the mortgage under Order 34 Rule 14 CPC c. he is entitled to bring the mortgage property to sale in execution proceedings. d. Either (a) or (c). Answer: (b)

23. On dismissal of the suit for non-compliance with an order for discovery under Order XI, Rule 21 of CPC: a. the plaintiff can bring a fresh suit on the same cause of action as a matter of right b. the plaintiff can bring a fresh suit on the same cause of action only with the leave of the court c. the plaintiff is precluded from bringing any fresh suit on the same cause or action d. the plaintiff can bring a fresh suit on the same cause of action only if the court dismissing the suit has granted liberty to file a fresh suit. Answer: (c)

20. Order 6, Rule 1, CPC empowers the court, at 24. Order XVII, Rule 2 and Order XVII, Rule 3 of any stage of the pleadings to strike out any matter CPC are: contained in it: a. in conflict with each other a. If it is unnecessary, scandalous, frivolous or b. independent & mutually exclusive vexatious c. Order XVII, Rule 3 of CPC is dependent b. If it tends to prejudice, embarrass or delay on Order XVIL, Rule 2 of CPC the fair trial of suit d. Order XVII, Rule 3 of CPC controls Order c. If it is an abuse of the process of the court XVII, Rule 2 of CPC. d. All of the above. Answer: (b) Answer: (d) 25. Arrest & detention of a person in civil impris21. Mark the correct statement: onment in execution of the decree: a. In set-off, court-fee is payable by the dea. absolves him from liability under the decree fendant but can be re-arrested b. Order 8, Rule 6, CPC deals with legal setb. does not absolve him and the person can be off re-arrested c. Legal set-off can be claimed as of right, the c. does not absolve him but the person cannot equitable set-off is dependent on the court’s be re-arrested discretion d. Absolves him from the liability altogether d. All of the above. and cannot be re-arrested. Answer: (d) Answer: © 22. An agreement entered into or compromise, on 26. In cases of withdrawal of suit by the plaintiff, behalf of a minor without the leave of the court, under Order XXIII, Rule 1A of CPC: under Order 32, Rule 7 of CPC is: a. defendants cannot be transposed as plaina. Voidable against all the parties other than tiffs 26

b. defendants can be transposed as plaintiffs e. Order 35 Rule 1 CPC. under all circumstances Answer: (a) c. defendants can be transposed as plaintiff if 32. In which of the following writs, the doctrine substantial question is to be decided of res judicata is not applicable? against any of the other defendants a. Habeas Corpus d. either (A) or (B). b. Certiorari Answer: (c) c. Mandamus d. Quo Warranto. 27. The land for the beneficial enjoyment of Answer: (a) which the easementary right exists is called: a. Profit-a-prendre 33. If the election of the President of India is deb. Servient heritage clared void by the Supreme Court, the acts perc. Dominant heritage formed by the President incumbent before the d. Customary heritage. date of such decision of court are: Answer: (c) a. valid but subject to judicial review b. invalid 28. Private alienation of property, by the judgc. valid ment debtor after attachment under section 64(1) d. valid but subject to the approval of the Parof CPC is: liament. a. Valid Answer: (c) b. Voidable c. Void 34. Which of the following sentence(s) is/are cord. None. rect? Answer: (c) (I) The President can commute death sentence to the life imprisonment 29. Under Order 32, Rule 2A, CPC a person (II) The Governor cannot commute death senguilty of disobedience of breach can be penalized tence to the life imprisonment by: (III) The President’s power to pardon extends to a. Attachment of property the punishment or sentence by court martial. b. Detention in civil imprisonment a. (I), (II) and (III) c. Either (A) or (B) or both b. (II) d. Either (A) or (B). c. c. (I) and (III) Answer: (c) d. (I). Answer: (c) 30. Preliminary decree can be passed in a suit: a. For partition 35. In 2017, the Supreme Court held that right to b. Of partnership privacy is protected under Article 21 of the Conc. For possession and mesne profits stitution of India in the context of: d. All of above a. State Surveillance e. None of the above. b. Power of search & seizure Answer: (d) c. Homosexuality d. Indian Biometric Identification Scheme. 31. Under___ redemption of mortgage can be Answer: (d) sought by any one of the legal representatives after death of mortgagor. 36. The Constitution of India empowers the Sua. Order 34 Rule 1 CPC preme Court of India to adjudicate disputes beb. Order 33 Rule 1 CPC tween the Centre and the States through: c. Order 32 Rule 1 CPC a. Appellate Jurisdiction d. Order 31 Rule 1 CPC b. Original Jurisdiction 27

THE STREAMING LAW/FEBRUARY-2022

c. Advisory Jurisdiction d. Writ Jurisdiction e. None of the above. Answer: (b)

e. None of them are true. Answer: (b) 39. Match the following: List I (i) Indra Sawhney v. Union of India 37. Which of the following is not true about the (ii) Keshavananda Bharati v. State of Kerala Attorney General of India? (iii) Aruna Ramachandra Shanbaug v. Union (I) He is the highest legal officer of the Union of India Government of India (iv) Selvi v. State of Karnataka (II) He has the right of audience in all the courts in India List II (III) He has the voting right in the proceeding (a) Doctrine of legitimate Expectation of the parliament (b) Validity of Narco Analysis (IV) His term of the office and remuneration is (c) Doctrine of Basic Structure decided by the president (d) Mandal commission case (V) One of the eligibility criteria for appoint- (e) Passive Euthanasia ment as the attorney general of India is that the candidate must be qualified to be (a)-(iv), (b)-(iii), (c)-(v), (d)-(ii), (e)-(i) appointed as a judge of Supreme Court of (a)-(iv), (b)-(iii), (c)-(v), (d)-(i), (e)-(ii) India (a)-(iv), (b)-(i), (c)-(v), (d)-(ii), (e)-(iii) a. Only (II) (a)-(iii), (b)-(iv), (c)-(v), (d)-(ii), (e)-(i). b. Only (III) Answer: (a) c. (II) & (III) d. None of the above 40. Doctrine of legitimate expectation and e. Only (V). Wednesbury principles were read by Supreme Answer: (b Court into: a. Article 12 38. Which the following are true about the funb. Article 14 damental duties for Indian citizens? c. Article 13 (I) They require us to safeguard public propd. Article 25. erty Answer: (b) (II) They require us to protect and improve the natural environment 41. Reference by the President of India under (III) They are contained in Article 51A of the Article 143(1) of the Constitution (Keshav Constitution of India Singh’s case, AIR 1965 SC 745) relates to: (IV) They are added by 42nd Amendment of a. Ayodhya issue the Constitution of India b. Delhi Laws (V) They require us to develop the scientific c. Privileges temper and spirit of enquiry d. Judges appointment. (VI) There were originally 11 fundamental du- Answer: (c) ties (VII)They can be enforced through writs as 42. Which of the following statements are true well as promoted through constitutional regarding a decree of declaration? methods (I) It creates no new rights a. (I), (II), (III), (IV), (V), (VII) are true (II) It cannot be prayed as a matter of right b. (I), (II), (III), (IV), (V) are true (III) If all the parties are not joined, declaration c. All are true cannot be granted d. (I), (II), (III), (IV), (V), (VI) are true (IV) Such a decree is conclusive between the 28

parties to it and persons litigating through them a. (I), (II), (III), (IV) b. (I), (III), (IV) c. (I), (II), (III) d. (I) & (II). Answer: (a)

attaining majority (III) Minor’s Contract can be ratified jointly by both the parties to the contract (IV) Minor is not liable under minor’s contract (V) Minor’s contract is an enforceable contract

a. (I) & (III) 43. Extended period of limitation for institution b. (V) & (II) of a suit for specific performance of a contract c. (II) & (IV) cannot stretch beyond________ from the d. (II) & (III) cessation of the disability. e. (III) & (V). a. 1 year Answer: (c) b. 2 years c. 3 years 48. Contract in restraint of trade is: d. 6 years. a. void Answer: (c) b. voidable c. opposed to public policy 44. Under Section 6 of the Specific Relief Act, the d. none of the above. suit can be brought by: Answer: (a) a. A servant b. A manager 49. Novation amounts to: c. A tenancy by holding over a. discharge of contract d. A trespasser. b. formation of consideration Answer: (c) c. remission d. waiver. 45. By virtue of Section 6 of the Specific Relief Answer: (a) Act, a suit for possession of an immovable property can be filed within a period of_____ dis- 50. Void agreements include: possession. a. Agreements in restraint of marriage a. 3 years b. Agreements in restraint of legal proceedb. 3 months ings c. 6 months c. Agreements with minors d. 1 year. d. All of the above. Answer: (c) Answer: (d) 46. It is mandatory that transfer of an actionable 51. A minor is: claim can be effected only by an instrument in a. not liable either personally or through his writing but it does not have effect on: estate negotiable instrument b. capable of ratifying agreements arrears of rent c. liable for necessaries supplied out of propan amount due under a letter of credit erty none of the above. d. not permitted to plead minority as defence. Answer: (c) Answer: (a) —— 47. Which of the following statements are true? (I) Minor’s Contract can be ratified on attaining majority (II) Minor’s Contract cannot be ratified on 29

THE STREAMING LAW/FEBRUARY-2022

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What is vidhigraam? Our activities Vidhigraam (Sanskrit word, meaning “a  Vidhigraam has a registered website village of law”) is an association of law profes(vidhigraam.com). sionals. It has been founded by a group of Del We publish a monthly e-magazine for lehi-based practising advocates in 2018 with acagal news and views in English and Hindi demic and socio-legal objectives. languages (The Streaming Law/स्रीमर्िंग Our objectives लॉ). We have published some study material for LLB students. The sole objectives of our association are to impart legal acumen and court crafts with  We organize online workshops and legal newly and freshly enrolled advocates and to discussions with esteemed experts from help law students for excellence in the profesthe legal fraternity every second and sion. And further, to impart and profess legal fourth Saturday. knowledge and awareness among the common  We organize legal awareness camps on man in society. regular basis.

Our Executive Team

Babita Jha, Advocate

(Supreme Court), President

Sh Om Prakash Mishra, Advocate (Supreme Court), Advisor

Dr Vidyottma Jha

Ms Nidhi Bindal

Sh Vikash Kr Singh,

Sh Nemi Nath Chaturvedi,

Ms Ritu Kheda,

Advocate (Supreme Advocate (National Consumer Advocate (Supreme Court) Vice-President Court), Vice-President Commission), Secretary

Advocate (Supreme Court), Advisor

Sh Devraj Aggarwal, Sh Puneet Vinay, Advocate (Delhi High Advocate (Supreme Court), Executive Member Ms Priyanka Jha, Advocate (Karnataka High Court), Executive Member

Ms Rashmi Arora,

Advocate (Supreme Court) Advisor

Advocate (Gujarat High Court), Convener

Sh Prem Grover, Advocate (Delhi High Court), Executive Member

Ms Archana Singh, Advocate (Supreme Court), Executive Member

Sh Shiva Nand Mishra, Advocate, Armed Forces Tribunal) Executive Member 30

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