Delhi HC orders disability quota in judiciary recruitments
| Posted on 28 March 2014 by Vineet Kumar | |
CourtHigh Court of Delhi BriefThe bench comprising of Justice S. Ravindra Bhat and Justice R. V. Easwar held that the decision of the High Court administration to not include the disability quota in the upcoming direct recruitment for the Delhi Higher Judicial Services was discriminatory. CitationNational Federation of Blind v. Union Public Service Commission and Others AIR 1993 SC 1916 Ravi Kumar Arora v. Union of India (UOI) and Anr. reported as (111) 2004 DLT 126 All India Confederation of the Blind v. Union of India (Ministry of Railways) (W.P.(C) 23132/2005) Union of India (UOI) and Anr. v. National Federation of the Blind and Ors. 2013 (10) SCC 772 Govt. of India through Secretary and Anr. v. Ravi Prakash Gupta and Anr. 2010 (7) SCC 626 Roop Chand Adlakha and Ors. v. Delhi Development Authority and Ors., AIR 1989 SC 307 The State of Gujarat & Anr v Shri Ambica Mills Ltd., Ahmedabad & Anr. [(1974) 4 SCC 656] Judgement * IN THE HIGH COURT OF DELHI AT NEW DELHI Reserved on: 21.03.2014 Pronounced on: 25.03.2014 + W.P.(C) 983/2014, C.M. NOS.1973/2014 & 1974/2014 NISHANT. S. DIWAN …..Petitioner Through: Sh. Jinendra Jain, Sh. Ajay Jain, Sh. B.N. Gaur, Sh. R.P. Kaushal and Sh. Arun Jain, Advocates. Versus HIGH COURT OF DELHI THROUGH REGISTRAR GENERAL AND ANR. …..Respondents Through: Sh. Rajiv Bansal and Sh. Anchit Sharma, Advocates, for Resp. No.1. Ms. Sonal. K. Singh and Sh. Anurag Gohil, Advocates, for Resp. No.2. CORAM: HON'BLE MR. JUSTICE S. RAVINDRA BHAT HON'BLE MR. JUSTICE R.V. EASWAR MR. JUSTICE S. RAVINDRA BHAT % 1. In these proceedings under Article 226 of the Constitution, a direction is sought to the Delhi High Court Establishment, through its Registrar General (hereafter called "the High Court Establishment") to reserve 3% of the vacancies for the disabled persons, in the Delhi Higher Judicial Service (DHJS) Examination-2013 and consequently reserve 3% of the posts of the total cadre strength of that Service (hereafter referred to as "DHJS") and consider his case as well in the category of "disabled persons". Consequently, direction to the High Court Establishment to grant extra 30 minutes to the petitioner for W.P.(C) 983/2014 Page 1 attempting the DHJS Examination, in respect of the directrecruitment quota is also sought. 2. The petitioner has been practicing as an advocate since 1998; he claims to be disabled in terms of The Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995 (hereafter referred to as the "Disabilities Act"). He suffers from what is termed as "FOLLOW UP CASE OF HYDROCEPHALUS WITH STUNT SURGERY WITH MYOSITIS OSSIFICANS HIP WITH ANKYLOSED HIP". This condition, the petitioner says, is described as "locomotor disability" under the Disabilities Act which entitles him to benefits under that law, especially Section 33. The petitioner contends that in terms of an old 1977 Central Government notification, reservations to the extent of 3% for persons with disabilities was provided for in Group-C and Group-D posts and in Central Public Service Undertakings. There was a continuous demand to extend that benefit to Group-A and Group-B posts eventually leading to litigation under Article 32 of the Constitution which culminated in the decision reported as National Federation of Blind v. Union Public Service Commission and Others AIR 1993 SC 1916. The Supreme Court, in its judgement, directed the Central Government to consider the feasibility of extending the reservations to Group-A and Group-B posts. The petitioner relies upon Section 33 of the Disabilities Act to urge that with its enactment, every appropriate government is obliged to appoint in every establishment not less than 3% of the W.P.(C) 983/2014 Page 2 vacancies, of the posts from amongst persons or class of persons with disabilities such as blindness or blurred vision, hearing impairment or locomotor disabilities or cerebral palsy. 3. The petitioner then refers to various developments, including the judgment of a Single Judge in Ravi Kumar Arora v. Union of India (UOI) and Anr. reported as (111) 2004 DLT 126 which was eventually affirmed by the Supreme Court. The petitioner also refers to another Division Bench ruling in All India Confederation of the Blind v. Union of India (Ministry of Railways) (W.P.(C) 23132/2005) where a direction to the Central Government to fill-up backlog of reserved posts of disabled category of candidates, on the basis of total cadre strength and not on the basis of vacancies, was given. It is submitted that with the recent judgment of the Supreme Court, reported as Union of India (UOI) and Anr. v. National Federation of the Blind and Ors. 2013 (10) SCC 772, a wide nature of the rights, enuring to all citizens with disabilities and the corresponding obligation to fill-up at least 3% of the vacancies in respect of each service and post has been mandated. 4. The petitioner complains that the advertisement dated 30.12.2013 issued by the High Court Establishment, calling for applications and advertising 14 vacancies (4 set apart for SC/ST candidates and 10 for general candidates) is contrary to the express provisions of the Disabilities Act and the guidelines issued in that W.P.(C) 983/2014 Page 3 regard. Emphasizing Section 33, the petitioner argues that since he suffers from locomotor disability, the High Court Establishment was under a duty to set-apart the appropriate number of posts having regard to the total cadre strength of 224 posts in DHJS. It is argued that the omission to make appropriate reservation in the proposed or on-going recruitment process in fact amounts to discrimination because persons with disabilities can compete for almost similar, if not entirely identical posts, of Civil Judges and Magistrates, through a Central Government circular of 18-01-2007. 5. It is also urged that the Central Government itself has determined that the ITAT members would be subjected to the 3% reservation under the Disabilities Act in the same 18.01.2007 circular. These two categories, i.e. Civil Judges/Magistrates as well as the members of ITAT perform similar functions which are of judicial nature. In the circumstances, to exclude DHJS from the benefit of reservation is both arbitrary and discriminatory. Besides, the circular of 18.01.2007 relied upon by the High Court Establishment, there is no rationale to support this differential treatment nor does the tenor of the decision of the Court taken at that time, show that any differentiation or unequal treatment was intended. 6. The relevant provisions of the Disabilities Act are as follows: "2(a) Appropriate Government" means,- W.P.(C) 983/2014 Page 4 (i)in relation to the Central Government or any establishment/wholly or substantially financed by that Government, or a Cantonment Board constituted under the Cantonment Act, 1924, the Central Government ; (ii)in relation to a State Government or any establishment wholly or substantially financed by that Government, or any local authority, other than a Cantonment Board, the State Government; (iii)in respect of the Central Co-ordination Committee and the Central Executive Committee, the Central Government; (iv)in respect of the State Co-ordination Committee and the State Executive Committee, the State Government; xxxxx xxxxx xxxxxx 2(i)"Disability" means- i. blindness; ii. low vision; iii. leprosy-cured; iv.hearing impairment; v.loco motor disability; vi. mental retardation; vii. mental illness; xxxxx xxxxx xxxxxx 2(j)"employer" means,- i. In relation to a Government, the authority notified by the Head of the Department in this behalf or where no such authority is notified, the Head of the Department; and ii. in relation to an establishment, the Chief Executive Officer of that establishment; W.P.(C) 983/2014 Page 5 xxxxx xxxxx xxxxxx 2(k) "establishment" means a corporation established by or under a Central, Provincial or State Act, or an authority or a body owned or controlled or aided by the Government or a local authority or a Government company as defined in section 617 of the Companies Act, 1956 (1 of 1956) and includes Departments of a Government; xxxxx xxxxx xxxxxx 32. Identification of posts which can be reserved for persons with disabilities. - Appropriate Governments shall - a. identify posts, in the establishments, which can be reserved for the persons with disability; b. at periodical intervals not exceeding three years, review the list of posts identified and up-date the list taking into consideration the developments in technology. xxxxx xxxxx xxxxxx 33. Reservation of Posts - Every appropriate Government shall appoint in every establishment such percentage of vacancies not less than three per cent. for persons or class of persons with disability of which one per cent. each shall be reserved for persons suffering from- i. blindness or low vision; ii. hearing impairment; iii. locomotor disability or cerebral palsy, in the posts identified for each disability: W.P.(C) 983/2014 Page 6 Provided that the appropriate Government may, having regard to the type of work carried on in any department or establishment, by notification subject to such conditions, if any, as may be specified in such notification, exempt any establishment from the provisions of this section. xxxxx xxxxx xxxxxx 36. Vacancies not filled up to be carried forward – Where in any recruitment year any vacancy under section 33, cannot be filled up due to non-availability of a suitable person with disability or, for any other sufficient reason, such vacancy shall be carried forward in the succeeding recruitment year and if in the succeeding recruitment year also suitable person with disability is not available, it may first be filled by interchange among the three categories and only when there is no parson with disability available for the post in that year, the employer shall fill up the vacancy by appointment of a person, other than a person with disability: Provided that if the nature of vacancies in an establishment is such that a given category of person cannot be employed, the vacancies may be interchanged among the three categories with the prior approval of the appropriate Government." 7. The High Court Establishment, in its reply and the arguments advanced on its behalf in Court does not deny the essential facts, such as publication of the advertisement calling for applications from amongst the eligible candidates to fill-up the 14 vacancies or that 10 of them have been set apart for general candidates and 4 for SC/ST candidates. Learned counsel for the High Court Establishment W.P.(C) 983/2014 Page 7 however, argues that in terms of the Ministry of Social Justice and Empowerment notification dated 18.01.2007, only Civil Judges and Magistrates of the Delhi Judicial Service (DJS), covered by the Delhi Judicial Service Rules and comprising of the cadre of Civil Judges/Magistrates have been identified as posts who are subject to the coverage of the Disabilities Act. Pointed reference is made to Sr. No. 466 of the Central Government, Ministry of Social Justice and Empowerment description in this regard which is as follows: SI No. 466 . Designation Physical Requirement s Judges/Magistrat es Subordinate in Lower Judiciaries Categories of Disabled suitable for the jobs S.SCT.C.R.W OA.OL.BL.B.B V Nature of work preferred Deal with Civil and Criminal cases by adopting established procedure both under Civil and Criminal Codes. Records evidence and pass necessary orders/judgments 8. Counsel for the respondent also refers to a previous Division Bench decision of this Court dated 23.08.2006 in W.P.(C) 9840/2006 where the following order was made: "the Government of India, Ministry of Social Justice and Empowerment has issued a corrigendum vide Notification dated 25 th July, 2006 notifying that in the Gazette of India (Extraordinary) Part I, Section 1, serial number 178 dated the 30 th June, 2001 containing the Ministry of Social Justice and Empowerment notification number 16-25/99-I dated W.P.(C) 983/2014 Page 8 Working conditions/re marks The work is mostly performed inside. The work place is well lighted. The worker usually works alone. the 31 st May, 2001, in the List of Jobs Identified for being held by persons with Orthopedic Disabilities or C.P. in Group A, relating to categories of Disabled suitable for jobs, for the letters and words "B.LV (mobility not to be restricted)", the letters "OA, OL, BL" shall be substituted. In view of this corrigendum, the persons with orthopaedic disability or C.P. having one arm (OA), one leg (OL), both legs (BL) affected as well as blind persons and persons with low vision (mobility not to be restricted) have been recommended for appointment as Judges/Magistrates in subordinate Judiciary. It is pertinent to state that this is a recommendation of the Expert Committee constituted to identify/review the posts persons with disabilities – in the Ministries/Departments, Public Sector Undertakings. The Government of NCT of Delhi shall forward the recommendations of the Expert Committee as they stand amended by the corrigendum dated 25 th July, 2006 to the Delhi High Court. As and when such a communication is sent by the Government of NCT of Delhi to the Delhi High Court, the same would be processed by the Delhi High Court in accordance with law." 9. The respondent further states that consequential action pursuant to the above directions was taken pursuant to the recommendation of a five-Judge Committee made on 09.03.2007 in respect of the DJS, comprising of Civil Judges and Magistrates. The minutes of meeting recommended that: "........3% of the vacancies shall be reserved for persons with disabilities as required under Section 33 of "The Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995". The Committee was of W.P.(C) 983/2014 Page 9 the view that since the obligation to reserve 3% vacancies arises from the provisions of Section 33 of the Act aforementioned, there is no provision in the Rules themselves. The reservation and appointment shall be regulated by the statutory notification, if any, issued by the Government of India. The Committee has in this regard taken note of Notification No.16-25/99-NI-I dated 31.05.2001 as amended vide Corrigendum No.3914/2006/DD-III dated 25.07.2006 issued by the Ministry of Social Justice and Empowerment, Government of India, New Delhi, identifying the posts of "Judges/Magistrates Subordinate in Lower Judiciaries" as the jobs identified for being held by persons with specified disabilities viz. BlindLow Vision (mobility not to be restricted) OA – one Arm Affected (right or left) OL – one leg affected (right or left), BL (both legs affected but not arms). The advertisement notice to be issued for future DJS Examinations shall accordingly make a suitable provision and invite applications from all such person as are eligible for appointment against such vacancies." 10. It is argued that in the absence of a specific determination under Section 32, the petitioner cannot claim a right to be considered as a disabled candidate nor seek that reservation should be given in the cadre of DHJS. Counsel for the respondent also urges that since the advertisement was issued, any interdiction by this Court at this stage, given the fact that the examination is scheduled for 06.04.2014, would upset the entire timeline and delay the recruitment process. It is argued that whilst there can be no quarrel to the applicability of the Disabilities Act, yet as to what category of posts requires to be covered by the enactment is a matter of W.P.(C) 983/2014 Page 10 discretion best left to the High Court by virtue of Section 32. In the present case, the exercise having been concluded on 09.03.2007 and since in that decision, the reservations in the cadre of DHJS were not recommended, it would be unfeasible to reserve any post for persons with disabilities as that would involve a great deal of administrative inconvenience. 11. The latest decision of the Supreme Court in National Federation of the Blind (supra) considered the obligations of employers, particularly those in the Central Government, State and the public sector to comply with the provisions of the Disabilities Act. The Court traced the history of the enactment as well as the instructions issued from time to time by the Central Government to consolidate and update the instructions. These were the Office Memorandum dated 29.12.2005, 10.12.2008 etc. which were analysed. The Court rejected the submission on behalf of the Union of India (UOI) that the obligation to reserve the posts would arise only after their identification. It was held that, "to accept such a submission would amount to accepting the situation where the provisions of Section 33 of the aforesaid Act would be kept deferred indefinitely by bureaucratic inaction. Such a stand taken by the petitioners before the High Court was rightly rejected." The Court then held that logically in terms of Section 32, posts had to be identified for reservation for purposes of Section 33 but the exercise had to be undertaken simultaneously with the coming into force of W.P.(C) 983/2014 Page 11 the Act, to give meaning and effect to Section 33. The Court pertinently noticed its previous decision in Govt. of India through Secretary and Anr. v. Ravi Prakash Gupta and Anr. 2010 (7) SCC 626 that, "16. It is only logical that, as provided in Section 32 of the aforesaid Act, posts have to be identified for reservation for the purposes of Section 33, but such identification was meant to be simultaneously undertaken with the coming into operation of the Act, to give effect to the provisions of Section 33. The legislature never intended the provisions of Section 32 of the Act to be used as a tool to deny the benefits of Section 33 to these categories of disabled persons indicated therein. Such a submission strikes at the foundation of the provisions relating to the duty cast upon the appropriate Government to make appointments in every establishment (emphasis added)." 12. The Court in National Federation of the Blind (supra) then went on to endorse the view that the extent of dependence – of reservation, upon the identification exercise would be for "making appointments and not for the purpose of making reservations". The judgment went on to hold as follows: "30. Apart from the reasoning of this Court in Ravi Prakash Gupta (supra), even a reading of Section 33, at the outset, establishes vividly the intention of the legislature viz., reservation of 3% for differently abled persons should have to be computed on the basis of total vacancies in the strength of a cadre and not just on the basis of the vacancies available in the identified posts. There is no ambiguity in the language of Section 33 and from the W.P.(C) 983/2014 Page 12 construction of the said statutory provision only one meaning is possible. 31. A perusal of Section 33 of the Act reveals that this section has been divided into three parts. The first part is "every appropriate Government shall appoint in every establishment such percentage of vacancies not less than 3% for persons or class of persons with disability." It is evident from this part that it mandates every appropriate Government shall appoint a minimum of 3% vacancies in its establishments for persons with disabilities. In this light, the contention of the Union of India that reservation in terms of Section 33 has to be computed against identified posts only is not tenable by any method of interpretation of this part of the Section. 32. The second part of this section starts as follows: "...of which one percent each shall be reserved for persons suffering from blindness or low vision, hearing impairment & locomotor disability or cerebral palsy in the posts identified for each disability." From the above, it is clear that it deals with distribution of 3% posts in every establishment among 3 categories of disabilities. It starts from the word "of which". The word "of which" has to relate to appointing not less than 3% vacancies in an establishment and, in any way, it does not refer to the identified posts. In fact, the contention of the Union of India is sought to be justified by bringing the last portion of the second part of the section viz. "....identified posts" in this very first part which deals with the statutory obligation imposed upon the appropriate Government to "appoint not less than 3% vacancies for the persons or class of persons with disabilities." In our considered view, it is not plausible in the light of established rules of interpretation. The minimum level of representation of persons with disabilities has been provided in this very first part and the second part W.P.(C) 983/2014 Page 13 deals with the distribution of this 3% among the three categories of disabilities. Further, in the last portion of the second part the words used are "in the identified posts for each disability" and not "of identified posts". This can only mean that out of minimum 3% of vacancies of posts in the establishments 1% each has to be given to each of the 3 categories of disability viz., blind and low vision, hearing impaired and locomotor disabled or cerebral palsy separately and the number of appointments equivalent to the 1% for each disability out of total 3% has to be made against the vacancies in the identified posts. The attempt to read identified posts in the first part itself and also to read the same to have any relation with the computation of reservation is completely misconceived. XXXXXX XXXXXX XXXXXX 36. Admittedly, the Act is a social legislation enacted for the benefit of persons with disabilities and its provisions must be interpreted in order to fulfill its objective. Besides, it is a settled rule of interpretation that if the language of a statutory provision is unambiguous, it has to be interpreted according to the plain meaning of the said statutory provision. In the present case, the plain and unambiguous meaning of Section 33 is that every appropriate Government has to appoint a minimum of 3% vacancies in an establishment out of which 1% each shall be reserved for persons suffering from blindness and low vision, persons suffering from hearing impairment and persons suffering from locomotor or cerebral palsy. 37. To illustrate, if there are 100 vacancies of 100 posts in an establishment, the concerned establishment will have to reserve a minimum of 3% for persons with disabilities out of which at least 1% has to be reserved separately for each of the following disabilities: persons suffering from blindness or low vision, persons suffering from hearing W.P.(C) 983/2014 Page 14 impairment and the persons suffering from locomotor disability or cerebral palsy. Appointment of 1 blind person against 1 vacancy reserved for him/her will be made against a vacancy in an identified post for instance, the post of peon, which is identified for him in group D. Similarly, one hearing impaired will be appointed against one reserved vacancy for that category in the post of store attendant in group D post. Likewise, one person suffering from locomotor disability or cerebral palsy will be appointed against the post of "Farash" group D post identified for that category of disability. It was argued on behalf of Union of India with reference to the post of driver that since the said post is not suitable to be manned by a person suffering from blindness, the above interpretation of the Section would be against the administrative exigencies. Such an argument is wholly misconceived. A given post may not be identified as suitable for one category of disability, the same could be identified as suitable for another category or categories of disability entitled to the benefit of reservation. In fact, the second part of the Section has clarified this situation by providing that the number of vacancies equivalent to 1% for each of the aforementioned three categories will be filled up by the respective category by using vacancies in identified posts for each of them for the purposes of appointment. XXXXXX XXXXXX XXXXXX 49. Employment is a key factor in the empowerment and inclusion of people with disabilities. It is an alarming reality that the disabled people are out of job not because their disability comes in the way of their functioning rather it is social and practical barriers that prevent them from joining the workforce. As a result, many disabled people live in poverty and in deplorable conditions. They are denied the right to make a useful contribution to their own lives and to the lives of their families and community." W.P.(C) 983/2014 Page 15 13. With the enactment of the Disabilities Act, every establishment was placed under an obligation to effectuate its provisions, including its mandate to reserve and fill at least 3% of the vacancies which arose. This obligation is, given the nature of the mandate under Section 33, non-derogable by its character. The decision in Ravi Prakash Gupta, (supra) held this to be so, in as many terms: "15…….… neither Section 32 nor Section 33 of the aforesaid Act makes any distinction with regard to Groups A, B, C and D posts. They only speak of identification and reservation of posts for people with disabilities, though the proviso to Section 33 does empower the appropriate Government to exempt any establishment from the provisions of the said section, having regard to the type of work carried on in any department or establishment. No such exemption has been pleaded or brought to our notice on behalf of the petitioners. 16. It is only logical that, as provided in Section 32 of the aforesaid Act, posts have to be identified for reservation for the purposes of Section 33, but such identification was meant to be simultaneously undertaken with the coming into operation of the Act, to give effect to the provisions of Section 33. The legislature never intended the provisions of Section 32 of the Act to be used as a tool to deny the benefits of Section 33 to these categories of disabled persons indicated therein. Such a submission strikes at the foundation of the provisions relating to the duty cast upon the appropriate Government to make appointments in every establishment……. 17. While it cannot be denied that unless posts are identified for the purposes of Section 33 of the aforesaid Act, no appointments from the reserved categories contained therein can be made, and that to such extent the provisions of Section 33 are dependent on Section 32 of the W.P.(C) 983/2014 Page 16 Act, as submitted by the learned ASG, but the extent of such dependence would be for the purpose of making appointments and not for the purpose of making reservation. In other words, reservation under Section 33 of the Act is not dependent on identification, as urged on behalf of the Union of India, though a duty has been cast upon the appropriate Government to make appointments in the number of posts reserved for the three categories mentioned in Section 33 of the Act in respect of persons suffering from the disabilities spelt out therein. In fact, a situation has also been noticed where on account of nonavailability of candidates some of the reserved posts could remain vacant in a given year. For meeting such eventualities, provision was made to carry forward such vacancies for two years after which they would lapse. Since in the instant case such a situation did not arise and posts were not reserved under Section 33 of the Disabilities Act, 1995, the question of carrying forward of vacancies or lapse thereof, does not arise." 14. The enunciation of law by the Supreme Court is categorical about the imperative nature of the Disabilities Act's provisions vis-àvis reservation of posts in various establishments. This Court therefore, is bound to decide the issue before it within the framework of the declaration of law in Ravi Prakash Gupta, (supra) and National Federation of the Blind (supra) both pronouncements of three judge Benches of the Supreme Court. 15. Precedential compulsion apart, there is another circumstance which the Court has to consider. The respondents main argumentsupplementary to the lack of identification of the post of District Judge, is that the matter was put to the Committee of Judges which took note of the 18-01-2007 circular of the Central Government and W.P.(C) 983/2014 Page 17 decided that reservations in the DJS (as opposed to the DHJS) cadre and posts were to be ensured. A careful look at that document, i.e the minutes of meeting of 09-03-2007 shows that the Committee considered the proposal in the background of whether to provide for reservations in DJS. This is evident from the following observations in its minutes: "The reservation and appointment shall be regulated by the statutory notification, if any, issued by the Government of India. The Committee has in this regard taken note of Notification No.16-25/99-NI-I dated 31.05.2001 as amended vide Corrigendum No.39-14/2006/DD-III dated 25.07.2006 issued by the Ministry of Social Justice and Empowerment, Government of India, New Delhi, identifying the posts of "Judges/Magistrates Subordinate in Lower Judiciaries" as the jobs identified for being held by persons with specified disabilities…" However, the Committee did not positively rule-out reservations in DHJS. The operative direction was premised on the need to take a decision on the recruitment for DJS vacancies. 16. The second reason why this Court feels compelled to reject the respondent's argument is that as between DJS officers (who are Judges) and DHJS officers (who are also Judges certainly not less so) there is and can be no difference for the purposes of reservation under the Disabilities Act. The mere use of the word ("Magistrates") in Sl. No 466 in the circular of the Central Government was not meant to limit the benefit of reservation under the Act to only the Civil Judges/ W.P.(C) 983/2014 Page 18 Magistrates cadre or posts. Both categories of holders of posts' workload is fairly described as "Deal with Civil and Criminal cases by adopting established procedure both under Civil and Criminal Codes. Records evidence and pass necessary orders/judgments." Likewise, the notification (of the Central Government) goes on to mention in the last column, i.e "working conditions/remarks" that work is performed inside and the working conditions are well lighted. These descriptions apply equally to those in the Delhi Higher Judicial Service, who also exercise appellate jurisdiction over the decisions of DJS officers. Furthermore, the circular of the Central Government also describes Income Tax Appellate Tribunal members' posts as those which are subject to reservations under the Disabilities Act. The decision of the Committee (of this Court) dated 09-03-2007 surely was not intended to result in such discrimination. 17. The Supreme Court had perspicuously held that the doctrine of classification, which can be legitimately used to examine complaints of discrimination and violation of Article 14, itself cannot produce inequality, through under-classification or undue emphasis as the basis of drawing distinction when none exist. This aspect was emphasized in Roop Chand Adlakha and Ors. v. Delhi Development Authority and Ors., AIR 1989 SC 307: "7………………………………The process of classification is in itself productive of inequality and in that sense antithetical of equality. The process would be constitutionally valid if it recognises a pre-existing inequality and acts in aid of amelioration of the effects of W.P.(C) 983/2014 Page 19 such pre-existent inequality…………………………… The process cannot merely blow-up or magnify in-substantial or microscopic differences on merely meretricious or plausible. The over-emphasis on the doctrine of classification or any anxious and sustained attempts to discover some basis for classification may gradually and imperceptibly deprive the article of its precious content and end in re-placing doctrine of equality by the doctrine of the classification……………………." In The State of Gujarat & Anr v Shri Ambica Mills Ltd., Ahmedabad & Anr. [(1974) 4 SCC 656], again, the Supreme Court dwelt on the same aspect, in the following words: "54. A reasonable classification is one which includes all who are similarly situated and none who are not. The question then is: what does the phrase "similarly situated" mean? The answer to the question is that we must look beyond the classification to the purpose of the law. A reasonable classification is one which includes all persons who are similarly situated with respect to the purpose of the law. The purpose of a law may be either the elimination of a public mischief or the achievement of some positive public good. 55. A classification is under-inclusive when all who are included in the class are tainted with the mischief but there are others also tainted whom the classification does not include. In other words, a classification is bad as underinclusive when a State benefits or burdens persons in a manner that furthers a legitimate purpose but does not confer the same benefit or place the same burden on others who are similarly situated. A classification is overinclusive when it includes not only those who are similarly situated with respect to the purpose but others who are not so situated as well. In other words, this type of W.P.(C) 983/2014 Page 20 classification imposes a burden upon a wider range of individuals than are included in the class of those attended with mischief at which the law aims. Herod ordering the death of all male children born on a particular day because one of them would some day bring about his downfall employed such a classification." In one of the earlier cases, the Court had emphasized that when some distinction is sought to be the basis of differentiation for the purpose of classification, under Article 14, "the classification, however, must be based on some real and substantial distinction bearing a just and reasonable relation to the objects sought to be attained and cannot be made arbitrarily and without any substantial basis.." (Ref. Dhirendra Kumar Mandal v The Superintendent and Remembrancer of Legal Affairs to the Govt. of West Bengal and Anr. AIR 1954 SC 424). 18. In the present case, there is no material to suggest that DHJS officers perform duties and functions which are radically different from those in DJS. Indeed, their positions answer to the description of "Judges" of "Subordinate courts" (the latter being the expression used by the Constitution itself). Other posts whose holders discharge judicial functions such as members of ITAT too have been accorded the benefit of disability reservations under the Act. 19. In these circumstances, this Court holds that the non-inclusion of DHJS cadre posts for the purposes of reservation under the Disabilities Act, cannot be upheld; it amounts to discrimination. 20. Now, as to the question of relief. During the hearing, the Petitioner had contended that in terms of the existing guidelines he W.P.(C) 983/2014 Page 21 should be given relaxation in the time to be taken for writing the examination by way of extension of half an hour. As far as age relaxation is concerned, the advertisement does not specify any maximum age limit. That question does not accordingly arise. 21. The decision in National Federation of the Blind (supra) states that reservation under the Disabilities Act is to be vacancy-based – on a textual reading of Section 33. If one were to literally apply that authority to the facts of this case, it would not be possible to earmark any post under the 3% quota since the total number of advertised posts is only 14. Keeping in mind the circumstance that for the period 2007 onwards when the disabilities reservation was introduced in Judicial Services in Delhi for the first time, and also taking notice of the fact that this Court is called upon to decide the issue in the context of the direct recruitment quota for the DHJS which is 25% of the entire cadre strength of 224 posts or such other number as is determined, having regard to the increased number of posts, the most feasible approach under the circumstances would be to determine the total number of posts that are to be filled in this quota before actually taking steps to fill them. This Court is also mindful of the circumstance that the advertisement in this case was issued on 30.12.2013. The petitioner approached this Court on 03.02.2014. One of the alternatives that this Court could adopt would be to direct the consideration of the petitioner's case, based upon his claim as a disabled candidate and, therefore, entitled to be considered as against the 3% quota. Although this course is attractive, at the same time, the Court cannot be W.P.(C) 983/2014 Page 22 oblivious of the circumstance that other eligible and possibly equal, if not more meritorious candidates, are unaware of their right to be considered against this quota. Directing the petitioner's case alone to be processed on the basis of the documents and materials presented by him to back-up the claim of disability would in such a case result in keeping out those candidates. In these circumstances, this Court is of the opinion that the most appropriate method of proceeding with this exercise is to direct the respondents to earmark one of the advertised posts for disabled candidates in terms of the 3% quota under the Disabilities Act and not fill it up in the present recruitment process. Once the recruitment process is completed and the appointments are made, depending upon the further number of vacancies which may exist at the stage of declaration of results, the respondents should carry-out a review of the balance number of vacancies that can be appropriately earmarked for those with disabilities, club them with the post directed to be kept apart and proceed with the next recruitment process, clearly indicating the total number of vacancies earmarked under the 3% quota. In the event the respondents are not in a position to advertise all the vacancies, it shall endeavour to at least carry-out a special recruitment procedure in respect of only the earmarked vacancies falling to the share of those entitled to be considered under the 3% quota under the Disabilities Act, within one year of the date of declaration of results in the current recruitment process. A direction is accordingly issued to the respondents to carry-out the exercise and complete the special recruitment drive after following the steps indicated above. W.P.(C) 983/2014 Page 23 22. The Writ Petition is entitled to succeed to the above extent indicated above. It is accordingly allowed along with pending applications with no order as to costs. Order dasti. MARCH 25, 2014 S. RAVINDRA BHAT (JUDGE) W.P.(C) 983/2014 Page 24 R.V. EASWAR (JUDGE) |
SC: State is duty bound to protect the Fundamental Rights of its citizens
| Posted on 28 March 2014 by Vineet Kumar | |
CourtSupreme Court of India BriefThe bench comprising of Chief Justice of India, P. Sathasivam, Justice Sharad Arvind Bobde and Justice N.V. Ramana directed the West Bengal government to pay Rs. 5 lakh compensation in addition to already sanctioned Rs. 50,000 to the gang rape victim within one month. The bench also stated that: ''State is duty bound to protect the Fundamental Rights of its citizens; and an inherent aspect of Article 21 of the Constitution would be the freedom of choice in marriage. Such offences are resultant of the States incapacity or inability to protect the Fundamental Rights of its citizens...'' CitationLata Singh vs. State of U.P. and Ors., (2006) 5 SCC 475 Arumugam Servai vs. State of Tamilnadu, (2011) 6 SCC 405 Shakti Vahini vs. Union of India and Others in W.P. (C) No. 231 of 2010 State of Rajasthan vs. Sanyam, Lodha, (2011) 13 SCC 262 Bodhisattwa Gautam vs. Miss Subhra Chakraborty, (1996) 1 SCC 490 Delhi Domestic Working Women's Forum vs. Union of India and others P. Rathinam vs. State of Gujarat, (1994) SCC (Crl) 1163 Railway Board vs. Chandrima Das, (2000) 2 SCC 465 Satya Pal Anand vs. State of M.P. The State vs. Md. Moinul Haque and Ors. (2001) 21 BLD 465 Lalita Kumari vs. Govt. of U.P & Ors 2013 (13) SCALE 559 Judgement REPORTABLE IN THE SUPREME COURT OF INDIA CRIMINAL ORIGINAL JURISDICTION SUO MOTU WRIT PETITION (CRIMINAL) NO. 24 OF 2014 In Re: Indian Woman says gang-raped on orders of Village Court published in Business & Financial News dated 23.01.2014 J U D G M E N T P.Sathasivam, CJI. 1) This Court, based on the news item published in the Business and Financial News dated 23.01.2014 relating to the gang-rape of a 20 year old woman of Subalpur Village, P.S. Labpur, District Birbhum, State of West Bengal on the intervening night of 20/21.01.2014 on the orders of community panchayat as punishment for having relationship with a man from a different community, by order dated 24.01.2014, took suo motu action and directed the District Judge, Birbhum District, West Bengal to inspect the place of 1 occurrence and submit a report to this Court within a period of one week from that date. 2) Pursuant to the direction dated 24.01.2014, the District Judge, Birbhum District, West Bengal along with the Chief Judicial Magistrate inspected the place in question and submitted a Report to this Court. However, this Court, on 31.01.2014, after noticing that there was no information in the Report as to the steps taken by the police against the persons concerned, directed the Chief Secretary, West Bengal to submit a detailed report in this regard within a period of two weeks. On the same day, Mr. Sidharth Luthra, learned Additional Solicitor General was requested to assist the Court as amicus in the matter. 3) Pursuant to the aforesaid direction, the Chief Secretary submitted a detailed report dated 10.02.2014 and the copies of the same were provided to the parties. On 14.02.2014, this Court directed the State to place on record the First Information Report (FIR), Case Diaries, Result of the investigation/Police Report under Section 173 of the Code of 2 Criminal Procedure, 1973 (in short 'the Code'), statements recorded under Section 161 of the Code, Forensic Opinion, Report of vaginal swab/other medical tests etc., conducted on the victim on the next date of hearing. 4) After having gathered all the requisite material, on 13.03.2014, we heard learned amicus as well as Mr. Anip Sachthey, learned counsel for the State of West Bengal extensively and reserved the matter. Discussion: 5) Mr. Sidharth Luthra, learned amicus having perused and scrutinized all the materials on record in his submissions had highlighted three aspects viz. (i) issues concerning the investigation; (ii) prevention of recurring of such crimes; and (iii) Victim compensation; and invited this Court to consider the same. Issues concerning the investigation: 6) Certain relevant issues pertaining to investigation were raised by learned amicus. Primarily, Mr. Luthra stated that 3 although the FIR has been scribed by one Anirban Mondal, a resident of Labpur, Birbhum District, West Bengal, there is no basis as to how Anirban Mondal came to the Police Station and there is also no justification for his presence there. Further, he stressed on the point that Section 154 of the Code requires such FIR to be recorded by a woman police officer or a woman officer and, in addition, as per the latest amendment dated 03.02.2013, a woman officer should record the statements under Section 161 of the Code. While highlighting the relevant provisions, he also submitted that there was no occasion for Deputy Superintendent of Police to re-record the statements on 26.01.2014, 27.01.2014 and 29.01.2014 and that too in gist which would lead to possible contradictions being derived during cross-examinations. He also drew our attention to the statement of the victim under Section 164 of the Code. He pointed out that mobile details have not been obtained. He also brought to our notice that if the Salishi (meeting) is relatable to a village, then the presence of persons of neighbouring villages i.e., Bikramur and Rajarampur is not 4 explained. Moreover, he submitted that there is variance in the version of the FIR and the Report of the Judicial Officer as to the holding of the meeting (Salishi) on the point whether it was held in the night of 20.01.2014 as per the FIR or the next morning as per the Judicial Officer's report, which is one of the pertinent issues to be looked into. He also submitted that the offence of extortion under Section 385 of the Indian Penal Code, 1860 (in short 'the IPC') and related offences have not been invoked. Similarly, offence of criminal intimidation under Section 506 IPC and grievous hurt under Section 325 IPC have not been invoked. Furthermore, Sections 354A and 354B ought to have been considered by the investigating agency. He further pointed out the discrepancy in the name of accused Ram Soren mentioned in the FIR and in the Report of the Judicial Officer which refers to Bhayek Soren which needs to be explained. He also submitted that the electronic documents (e-mail) need to be duly certified under Section 65A of the Indian Evidence Act, 1872. Finally, he pointed out that 5 the aspect as to whether there was a larger conspiracy must also be seen. 7) Mr. Anip Sachthey, learned counsel for the State assured this Court that the deficiency, if any, in the investigation, as suggested by learned amicus, would be looked into and rectified. The above statement is hereby recorded. Prevention of recurring of such crimes: 8) Violence against women is a recurring crime across the globe and India is no exception in this regard. The case at hand is the epitome of aggression against a woman and it is shocking that even with rapid modernization such crime persists in our society. Keeping in view this dreadful increase in crime against women, the Code of Criminal Procedure has been specifically amended by recent amendment dated 03.02.2013 in order to advance the safeguards for women in such circumstances which are as under:- "154. Information in cognizable cases.— (1) x x x 6 Provided that if the information is given by the woman against whom an offence under Section 326A, Section 326B, Section 354, Section 354A, Section 354B, Section 354C, Section 354D, Section 376, Section 376A, Section 376B, Section 376C, Section 376D, Section 376E, or Section 509 of the Indian Penal Code is alleged to have been committed or attempted, then such information shall be recorded, by a woman police officer or any woman officer: Provided further that:-- (a) in the event that the person against whom an offence under Section 354, Section 354A, Section 354B, Section 354C, Section 354D, Section 376, Section 376A, Section 376B, Section 376C, Section 376D, Section 376E, or Section 509 of the Indian Penal Code is alleged to have been committed or attempted, is temporarily or permanently mentally or physically disabled, then such information shall be recorded by a police officer, at the residence of the person seeking to report such offence or at a convenient place of such person's choice, in the presence of an interpreter or a special educator, as the case may be; (2) x x x (3) x x x" "161.—Examination of witnesses by police:- (1) x x x (2) x x x (3) x x x Provided further that the statement of a woman against whom an offence under Section 354, Section 354A, Section 354B, Section 354C, Section 354D, Section 376, Section 376A, Section 376B, Section 376C, Section 376D, Section 376E, or Section 509 of the Indian Penal Code is alleged to have been committed or attempted shall be recorded, by a woman police officer or any woman officer." "164.—Recording of confessions and statements.— 5A In cases punishable under Section 354, Section 354A, Section 354B, Section 354C, Section 354D, sub-Section (1) 7 or sub-Section (2) of Section 376, Section 376A, Section 376B, Section 376C, Section 376D, Section 376E, or Section 509 of the Indian Penal Code, the Judicial Magistrate shall record the statement of the person against whom such offence has been committed in the manner prescribed in sub-Section (5), as soon as the commission of the offence is brought to the notice of the police:" "164 A. Medical examination of the victim of rape.- (1) Where, during the stage when an offence of committing rape or attempt to commit rape is under investigation, it is proposed to get the person of the woman with whom rape is alleged or attempted to have been committed or attempted, examined by a medical expert, such examination shall be conducted by a registered medical practitioner employed in a hospital run by the Government or a local authority and in the absence of such a practitioner, by any other registered medical practitioner, with the consent of such woman or of a person competent to give such consent on her behalf and such woman shall be sent to such registered medical practitioner within twenty-four hours from the time of receiving the information relating to the commission of such offence. (2) The registered medical practitioner, to whom such woman is sent shall, without delay, examine her person and prepare a report of his examination giving the following particulars, namely:-- (i) the name and address of the woman and of the person by whom she was brought; (ii) the age of the woman; (iii) the description of material taken from the person of the woman for DNA profiling; (iv) marks of injury, if any, on the person of the woman; (v) general mental condition of the woman; and (vi) other material particulars in reasonable detail, (3) The report shall state precisely the reasons for each conclusion arrived at. (4) The report shall specifically record that the consent of the woman or of the person competent, to give such consent on her behalf to such examination had been obtained. (5) The exact time of commencement and completion of the examination shall also be noted in the report. 8 (6) The registered medical practitioner shall, without delay forward the report to the investigating officer who shall forward it to the Magistrate referred to in section 173 as part of the documents referred to in clause (a) of sub-section (5) of that section. (7) Nothing in this section shall be construed as rendering lawful any examination without the consent of the woman or of any person competent to give such consent on her behalf. Explanation--For the purposes of this section, "examination" and "registered medical practitioner" shall have the same meanings as in section 53." 9) The courts and the police officialss are required to be vigilant in upholding these rights of the victims of crime as the effective implementation of these provisions lies in their hands. In fact, the recurrence of such crimes has been taken note of by this Court in few instances and seriously condemned in the ensuing manner. 10) In Lata Singh vs. State of U.P. and Ors., (2006) 5 SCC 475, this Court, in paras 17 and 18, held as under: "17. The caste system is a curse on the nation and the sooner it is destroyed the better. In fact, it is dividing the nation at a time when we have to be united to face the challenges before the nation unitedly. Hence, inter-caste marriages are in fact in the national interest as they will result in destroying the caste system. However, disturbing news are coming from several parts of the country that young men and women who undergo inter-caste marriage, are threatened with violence, or violence is actually committed on them. In our opinion, such acts of violence or threats or harassment are wholly illegal and those who commit them must be severely punished. This is a free and democratic country, and once a person becomes a major he 9 or she can marry whosoever he/she likes. If the parents of the boy or girl do not approve of such inter-caste or interreligious marriage the maximum they can do is that they can cut-off social relations with the son or the daughter, but they cannot give threats or commit or instigate acts of violence and cannot harass the person who undergoes such intercaste or inter-religious marriage. We, therefore, direct that the administration/police authorities throughout the country will see to it that if any boy or girl who is a major undergoes inter-caste or inter-religious marriage with a woman or man who is a major, the couple is not harassed by anyone nor subjected to threats or acts of violence, and anyone who gives such threats or harasses or commits acts of violence either himself or at his instigation, is taken to task by instituting criminal proceedings by the police against such persons and further stern action is taken against such persons as provided by law. 18. We sometimes hear of "honour" killings of such persons who undergo inter-caste or inter-religious marriage of their own free will. There is nothing honourable in such killings, and in fact they are nothing but barbaric and shameful acts of murder committed by brutal, feudal-minded persons who deserve harsh punishment. Only in this way can we stamp out such acts of barbarism." 11) In Arumugam Servai vs. State of Tamilnadu, (2011) 6 SCC 405, this Court, in paras 12 and 13, observed as under:- "12. We have in recent years heard of "Khap Panchayats" (known as "Katta Panchayats" in Tamil Nadu) which often decree or encourage honour killings or other atrocities in an institutionalised way on boys and girls of different castes and religion, who wish to get married or have been married, or interfere with the personal lives of people. We are of the opinion that this is wholly illegal and has to be ruthlessly stamped out. As already stated in Lata Singh case, there is nothing honourable in honour killing or other atrocities and, in fact, it is nothing but barbaric and shameful murder. Other atrocities in respect of personal lives of people committed by brutal, feudal-minded persons deserve harsh punishment. Only in this way can we stamp out such acts of 10 barbarism and feudal mentality. Moreover, these acts take the law into their own hands, and amount to kangaroo courts, which are wholly illegal. 13. Hence, we direct the administrative and police officials to take strong measures to prevent such atrocious acts. If any such incidents happen, apart from instituting criminal proceedings against those responsible for such atrocities, the State Government is directed to immediately suspend the District Magistrate/Collector and SSP/SPs of the district as well as other officials concerned and charge-sheet them and proceed against them departmentally if they do not (1) prevent the incident if it has not already occurred but they have knowledge of it in advance, or (2) if it has occurred, they do not promptly apprehend the culprits and others involved and institute criminal proceedings against them, as in our opinion they will be deemed to be directly or indirectly accountable in this connection." 12) Likewise, the Law Commission of India, in its 242 Report on Prevention of Interference with the Freedom of Matrimonial Alliances (in the name of Honour and Tradition) had suggested that: "11.1 In order to keep a check on the high-handed and unwarranted interference by the caste assemblies or panchayats with sagotra, inter-caste or inter-religious marriages, which are otherwise lawful, this legislation has been proposed so as to prevent the acts endangering the liberty of the couple married or intending to marry and their family members. It is considered necessary that there should be a threshold bar against the congregation or assembly for the purpose of disapproving such marriage / intended marriage and the conduct of the young couple. The members gathering for such purpose, i.e., for condemning the marriage with a view to take necessary consequential action, are to be treated as members of unlawful assembly for which a mandatory minimum punishment has been prescribed. 11 nd 11.2 So also the acts of endangerment of liberty including social boycott, harassment, etc. of the couple or their family members are treated as offences punishable with mandatory minimum sentence. The acts of criminal intimidation by members of unlawful assembly or others acting at their instance or otherwise are also made punishable with mandatory minimum sentence. 11.3 A presumption that a person participating in an unlawful assembly shall be presumed to have also intended to commit or abet the commission of offences under the proposed Bill is provided for in Section 6. 11.4 Power to prohibit the unlawful assemblies and to take preventive measures are conferred on the Sub-Divisional / District Magistrate. Further, a SDM/DM is enjoined to receive a request or information from any person seeking protection from the assembly of persons or members of any family who are likely to or who have been objecting to the lawful marriage. 11.5 The provisions of this proposed Bill are without prejudice to the provisions of Indian Penal Code. Care has been taken, as far as possible, to see that there is no overlapping with the provisions of the general penal law. In other words, the criminal acts other than those specifically falling under the proposed Bill are punishable under the general penal law. 11.6 The offence will be tried by a Court of Session in the district and the offences are cognizable, non-bailable and non-compoundable. 11.7 Accordingly, the Prohibition of Interference with the Freedom of Matrimonial Alliances Bill 20 has been prepared in order to effectively check the existing social malady." 13) It is further pertinent to mention that the issue relating to the role of Khap Panchayats is pending before this Court in Shakti Vahini vs. Union of India and Others in W.P. (C) No. 231 of 2010. 12 14) Ultimately, the question which ought to consider and assess by this Court is whether the State Police Machinery could have possibly prevented the said occurrence. The response is certainly a 'yes'. The State is duty bound to protect the Fundamental Rights of its citizens; and an inherent aspect of Article 21 of the Constitution would be the freedom of choice in marriage. Such offences are resultant of the States incapacity or inability to protect the Fundamental Rights of its citizens. 15) In a report by the Commission of Inquiry, headed by a former Judge of the Delhi High Court Justice Usha Mehra (Retd.), (at pg. 86), it was seen (although in the context of the NCR) that police officers seldom visit villages; it was suggested that a Police Officer must visit a village on every alternate days to "instill a sense of security and confidence amongst the citizens of the society and to check the depredations of criminal elements." 16) As a long-term measure to curb such crimes, a larger societal change is required via education and awareness. 13 Government will have to formulate and implement policies in order to uplift the socio-economic condition of women, sensitization of the Police and other concerned parties towards the need for gender equality and it must be done with focus in areas where statistically there is higher percentage of crimes against women. Victim Compensation: 17) No compensation can be adequate nor can it be of any respite for the victim but as the State has failed in protecting such serious violation of a victim's fundamental right, the State is duty bound to provide compensation, which may help in the victim's rehabilitation. The humiliation or the reputation that is snuffed out cannot be recompensed but then monetary compensation will at least provide some solace. 18) In 2009, a new Section 357A was introduced in the Code which casts a responsibility on the State Governments to formulate Schemes for compensation to the victims of crime in coordination with the Central Government whereas, 14 previously, Section 357 ruled the field which was not mandatory in nature and only the offender can be directed to pay compensation to the victim under this Section. Under the new Section 357A, the onus is put on the District Legal Service Authority or State Legal Service Authority to determine the quantum of compensation in each case. However, no rigid formula can be evolved as to have a uniform amount, it should vary in facts and circumstances of each case. In the case of State of Rajasthan vs. Sanyam, Lodha, (2011) 13 SCC 262, this Court held that the failure to grant uniform ex-gratia relief is not arbitrary or unconstitutional. It was held that the quantum may depend on facts of each case. 19) Learned amicus also advocated for awarding interim compensation to the victim by relying upon judicial precedents. The concept of the payment of interim compensation has been recognized by this Court in Bodhisattwa Gautam vs. Miss Subhra Chakraborty, (1996) 1 SCC 490. It referred to Delhi Domestic Working Women's Forum vs. Union of India and others to reiterate the 15 centrality of compensation as a remedial measure in case of rape victims. It was observed as under:- "If the Court trying an offence of rape has jurisdiction to award the compensation at the final stage, there is no reason to deny to the Court the right to award interim compensation which should also be provided in the Scheme." 20) This Court, in P. Rathinam vs. State of Gujarat, (1994) SCC (Crl) 1163, which pertained to rape of a tribal woman in police custody awarded an interim compensation of Rs. 50,000/- to be paid by the State Government. Likewise, this Court, in Railway Board vs. Chandrima Das, (2000) 2 SCC 465, upheld the High Court's direction to pay Rs. 10 lacs as compensation to the victim, who was a Bangladeshi National. Further, this Court in SLP (Crl.) No. 5019/2012 titled as Satya Pal Anand vs. State of M.P., vide order dated 05.08.2013, enhanced the interim relief granted by the State Government from Rs. 2 lacs to 10 lacs each to two girl victims. 21) The Supreme Court of Bangladesh in The State vs. Md. Moinul Haque and Ors. (2001) 21 BLD 465 has interestingly observed that "victims of rape should be compensated by giving them half of the property of the rapist(s) as 16 compensation in order to rehabilitate them in the society." If not adopting this liberal reasoning, we should at least be in a position to provide substantial compensation to the victims. 22) Nevertheless, the obligation of the State does not extinguish on payment of compensation, rehabilitation of victim is also of paramount importance. The mental trauma that the victim suffers due to the commission of such heinous crime, rehabilitation becomes a must in each and every case. Mr. Anip Sachthey, learned counsel for the State submitted a report by Mr. Sanjay Mitra, Chief Secretary, dated 11.03.2014 on the rehabilitation measures rendered to the victim. The report is as follows:- "GOVERNMENT OF WEST BENGAL HOME DEPARTMENT Report on the Rehabilitation Measures Reference: Suo Motu Writ Petition No. 24 of 2014 Subject: PS Labpur, District Birbhum, West Bengal Case No. 14/2014 dated 22.01.2014 under section 376D/341/506 IPC. In compliance with the order passed by the Hon'ble Supreme Court during the hearing of the aforesaid case on 4 March, 2014, the undersigned has reviewed the progress of rehabilitation measures taken by the State Government th 17 agencies. The progress in the matter is placed hereunder for kind perusal. 1. A Government Order has been issued sanctioning an amount of Rs.50,000/- to the victim under the Victim Compensation Scheme of the State Government. It is assured that the amount will be drawn and disbursed to the victim within a week. 2. Adequate legal aid has been provided to the victim. 3. 'Patta' in respect of allotment of a plot of land under 'Nijo Griha Nijo Bhumi Scheme' of the State Government has been issued in favour of the mother of the victim. 4. Construction of residential house out of the fund under the scheme 'Amar Thikana' in favour of the mother of victim has been completed. 5. Widow pension for the months of January, February and March, 2014 has been disbursed to the mother of the victim. 6. Installation of a tube well near the residential house of the mother of the victim has been completed. 7. Construction of sanitary latrine under TSC Fund has been completed. 8. The victim has been enrolled under the Social Security Scheme for Construction Worker. 9. Antyodaya Anna Yojna Card has been issued in favour of the victim and her mother. 10. Relief and Government relief articles have been provided to the victim and her family. The State Government has taken all possible administrative action to provide necessary assistance to the victim which would help her in rehabilitation and reintegration. (Sanjay Mitra) Chief Secretary" 18 23) The report of the Chief Secretary indicates the steps taken by the State Government including the compensation awarded. Nevertheless, considering the facts and circumstances of this case, we are of the view that the victim should be given a compensation of at least Rs. 5 lakhs for rehabilitation by the State. We, accordingly, direct the Respondent No. 1 (State of West Bengal through Chief Secretary) to make a payment of Rs. 5 lakhs, in addition to the already sanctioned amount of Rs. 50,000, within one month from today. Besides, we also have some reservation regarding the benefits being given in the name of mother of the victim, when the victim herself is a major (i.e. aged about 20 years). Thus, in our considered view, it would be appropriate and beneficial to the victim if the compensation and other benefits are directly given to her and accordingly we order so. 24) Further, we also wish to clarify that according to Section 357B, the compensation payable by the State Government under Section 357A shall be in addition to the payment of fine to the victim under Section 326A or Section 376D of the IPC. 19 25) Also, no details have been given as to the measures taken for security and safety of the victim and her family. Merely providing interim measure for their stay may protect them for the time being but long term rehabilitation is needed as they are all material witnesses and likely to be socially ostracized. Consequently, we direct the Circle Officer of the area to inspect the victim's place on day-to-day basis. Conclusion: 26) The crimes, as noted above, are not only in contravention of domestic laws, but are also a direct breach of the obligations under the International law. India has ratified various international conventions and treaties, which oblige the protection of women from any kind of discrimination. However, women of all classes are still suffering from discrimination even in this contemporary society. It will be wrong to blame only on the attitude of the people. Such crimes can certainly be prevented if the state police machinery work 20 in a more organized and dedicated manner. Thus, we implore upon the State machinery to work in harmony with each other to safeguard the rights of women in our country. As per the law enunciated in Lalita Kumari vs. Govt. of U.P & Ors 2013 (13) SCALE 559, registration of FIR is mandatory under Section 154 of the Code, if the information discloses commission of a cognizable offence and the Police officers are duty bound to register the same. 27) Likewise, all hospitals, public or private, whether run by the Central Government, the State Government, local bodies or any other person, are statutorily obligated under Section 357C to provide the first-aid or medical treatment, free of cost, to the victims of any offence covered under Sections 326A, 376, 376A, 376B, 376C, 376D or Section 376E of the IPC. 28) We appreciate the able assistance rendered by Mr. Sidharth Luthra, learned ASG, who is appointed as amicus curiae to represent the cause of the victim in the present case. 21 29) With the above directions, we dispose of the suo motu petition. NEW DELHI; MARCH 28, 2014. ……….…………………………CJI. (P. SATHASIVAM) ………….…………………………J. (SHARAD ARVIND BOBDE) ………….…………………………J. (N.V. RAMANA) |
On Saturday, 29 March 2014 1:25 AM, "info@cliofindia.com" <info@cliofindia.com> wrote:
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INCOME TAX REPORTS (ITR) HIGHLIGHTS
F Search proceedings valid where reliable evidence regarding concealment of income : Dr. Roop v. CIT (All) p. 240
F Assessee transferring its shares in private limited company to its holding company : Profits on sale of shares assessable as capital gains : CIT v. Renato Finance and Investment Ltd. (Bom) p. 267
F Assessee floating company to carry on business of hotel : Company having no income during period of construction of hotel : Excess investment assessable in hands of assessee : CIT v. D. P. Kanodia (All) p. 163
F Housing project : No disallowance on ground assessee not a developer : CIT v. Tarnetar Corporation (Guj) p. 174
F Housing project : Amendment with effect from 1-4-2005 : Requiring certificate of completion of project within four years of approval : Not applicable to project approved prior to that date : CIT v. CHD Developers Ltd. (Delhi) p. 177
F Commissioner cannot refuse to register trust on ground that trust has not commenced its activities : CIT v. Kutchi Dasa Oswal Moto Pariwar Ambama Trust (Guj) p. 194
F Trust not commencing its activities on date of filing application : Not a ground to deny registration : Director of Income-tax Exemptions v. Seervi Samaj Tambaram Trust (Mad) p. 199
F Appeal to Appellate Tribunal : Power to grant stay for a maximum of 365 days from date of initial order : CIT v. Ecom Gill Coffee Trading P. Ltd. (Karn) p. 204
F Appeal to Appellate Tribunal : Power to grant stay for a maximum of 365 days from date of initial order : CIT v. Maruti Suzuki (India) Ltd. (Delhi) p. 215
F Cotton waste not scrap not liable to collection of tax at source : CIT v. Adisankara Spinning Mills P. Ltd. (Mad) p. 233
F Expenditure incurred for purpose of promoting sports events and activities allowable : Deputy Director of Income-tax (Exemptions) v. Petroleum Sports Promotion Board (Delhi) p. 235
F Payment actually made and tax deducted therefrom in March and deposited in April : Deduction allowable : CIT v. Rajinder Kumar (Delhi) p. 241
F Business expenditure : Disallowance : Amendment of section 40(a)(ia) has retrospective effect : CIT v. Naresh Kumar (Delhi) p. 256
F Process of making jewellery amounts to manufacture and assessee entitled to exemption under section 10A : CIT v. Jayshree Gems and Jewellery (Delhi) p. 272
F Expenditure on purchase of machinery and equipment : Amounts deductible : CIT v. Jayshree Gems and Jewellery (Delhi) p. 272
F New ground not raised before Tribunal cannot be raised before High Court : CIT v. Jayshree Gems and Jewellery (Delhi) p. 272
F University accumulating an income of about rupees five hundred crores in ten years not entitled to exemption under section 10(23C) : Visvesvaraya Technological University v. Assistant CIT (Karn) p. 279
F Opinion of Valuation Officer not information for reopening assessment : Mahashay Chunnilal v. Deputy CIT (Delhi) p. 314
F Accounting principles v. Tax provisions-Pankaj R. Toprani, Advocate . . . 57
F Inefficiencies in scrutiny methods and practices-Central Board of Direct Taxes must bring reforms to upscale confidence of the taxpayer in the assessment system-Gopal Nathani, Chartered Accountant . . . 51
F Office of Director amount to PE/fixed base in India-Export commission payments-Article 14 and article 15 adversely applicable-Gopal Nathani, Chartered Accountant . . . 37
F Tax implications of conversion of stock-in-trade into investment-Pankaj R. Toprani, Advocate . . . 40
F Transfer Pricing Officer's power over international transactions not referred to him-Gopal Nathani, Chartered Accountant . . . 46
F Whether TDS on service tax portion to be deducted in the absence of agreement ?-Hiten Kishore Chande, Chartered Accountant . . . 65
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