NEW DELHI, (PTI): The Supreme Court Collegium has reiterated its November 11, 2021 recommendation for appointing senior advocate Saurabh Kirpal, an openly gay person, as a judge of the Delhi High Court, rejecting the Centre’s contention that though homosexuality stands decriminalised in India, same-sex marriage is still bereft of recognition.

The three-member Collegium headed by Chief Justice of India DY Chandrachud and also comprising Justices S K Kaul and K M Joseph, said the proposal for appointment of Kirpal as a judge of the high court has been pending for over five years and needs to be processed expeditiously.

”In this backdrop, the Collegium resolves to reiterate its recommendation dated 11 November, 2021 for appointment of Shri Saurabh Kirpal as a Judge of the Delhi High Court which needs to be processed expeditiously,” said a statement uploaded on the apex court website.

Kirpal is the son of former Chief Justice of India B N Kirpal.

”The recommendation unanimously made by the Collegium of the Delhi High Court on October 13, 2017 and approved by the Supreme Court Collegium on November 11, 2021 has been referred back to us on November 25, 2022 for reconsideration in light of the observations made in the file,” it noted.

The Collegium’s statement lauded Kirpal for being open about his sexual orientation, saying it ”goes to his credit” that he has not been surreptitious about it.

”From the letters of the Research & Analysis Wing (R&AW) dated April 11, 2019 and March 18, 2021, it appears that there are two objections to the recommendation which was made by the Collegium of this court on November 11, 2021 approving the name of Shri Saurabh Kirpal namely: (i) the partner of Shri Saurabh Kirpal is a Swiss national, and (ii) he is in an intimate relationship and is open about his sexual orientation,” the apex court statement said.

The statement quoted the letter of the Union Law Minister dated April 1, 2021 that though homosexuality stands de-criminalised in India, nonetheless same-sex marriage still remains bereft of recognition either in codified statutory law or uncodified personal law in India. ”Moreover, it has been stated that the candidate’s ‘ardent involvement and passionate attachment to the cause of gay-rights’ would not rule out the possibility of bias and prejudice,” the statement said.

The Collegium, which dealt with both the objections, said the two communications of R&AW do not reflect any apprehension in regard to the individual conduct or behaviour of the partner of Kirpal having a bearing on national security. It said there is no reason to ”pre-suppose” that the partner of the candidate, who is a Swiss national, would be inimically disposed to India, since the country of his origin is a friendly nation.

”Many persons in high positions including present and past holders of constitutional offices have and have had spouses who are foreign nationals. Hence, as a matter of principle, there can be no objection to the candidature of Shri Saurabh Kirpal on the ground that his partner is a foreign national,” the statement said.

Regarding the second objection, the Collegium has said it needs to be noted that the decisions of the Constitution bench of the apex court have established the constitutional position that every individual is entitled to maintain their own dignity and individuality, based on sexual orientation.

”The fact that Saurabh Kirpal has been open about his orientation is a matter which goes to his credit. As a prospective candidate for judgeship, he has not been surreptitious about his orientation,” it said. ”In view of the constitutionally recognised rights which the candidate espouses, it would be manifestly contrary to the constitutional principles laid down by the Supreme Court to reject his candidature on that ground,” the statement said.

It said Kirpal possesses ”competence, integrity and intellect” and his appointment will add value to the bench of the Delhi High Court and provide inclusion and diversity. The Collegium said Kirpal’s conduct and behaviour have been above board.

”It may have been advisable for the candidate not to speak to the press in regard to the reasons which may have weighed in the recommendations of the Collegium being sent back for reconsideration. However, this aspect should not be considered as a negative feature, particularly since the name has remained pending for over five years,” it said, adding the overwhelmingly positive aspects of his candidature must weigh in the balance. (PTI)

NEW DELHI, (PTI): The Supreme Court on Monday held that default bail granted to an accused can be cancelled on merits if a strong case is made out on filing of the charge sheet on conclusion of investigations and there are ”special reasons”.

Rejecting the submission that bail cannot be cancelled on merits once an accused is released on default bail, the court said if the argument is accepted then this would be giving a ”premium” to lethargic probe and frustrate the justice.

A bench of Justices M R Shah and C T Ravikumar said mere filing of charge sheet will not result in cancellation of the bail unless the court is satisfied that a strong case is made out that the accused has committed a non bailable offence.

”Mere filing of the charge sheet subsequent to a person is released on default bail under Section 167(2) CrPC cannot be a ground to cancel the bail of a person, who is released on default bail.

”However, on filing of the charge sheet on conclusion of the investigation, if a strong case is made out and on merits, it is found that he has committed a non-bailable offence/crime, on the special reasons/grounds and considering Section 437(5) and Section 439(2) CrPC, over and above other grounds on which the bail to a person, who is released on bail can be cancelled on merits,” the bench said.

Under section 167 (2) of the CrPC, an accused becomes entitled to grant of statutory bail if the probe agency fails to file the charge sheet in the trial court within the stipulated period of either 60 or 90 days.

The top court said there is no absolute bar that once a person is released on default bail under Section 167(2) CrPC, his bail cannot be cancelled on merits.

It said the bail granted to an accused can be cancelled on other general grounds like tampering with the evidence/witnesses, not cooperating with the investigating agency and/or not cooperating with the concerned trial court etc.

”The submission that once an accused is released on default bail under Section 167(2) CrPC, his bail cannot be cancelled on merits is accepted, in that case, it will be giving a premium to the lethargic and/or negligence, may be in a given case of deliberate attempt on the part of the investigating agency not to file the charge sheet within the prescribed time period.” The top court said even if the accused has committed a very serious offence like under the Narcotic Drugs and Psychotropic Substances Act(NDPS) or murder and he manages through a convenient investigating officer not to file the charge sheet within the prescribed time limit and gets released, it may lead to giving a premium to illegality and/or dishonesty.

The observations by the court came while hearing an appeal filed by the Central Bureau of Investigation (CBI) seeking cancellation of the bail to Erra Gangi Reddy in connection with the murder of former Andhra Pradesh Minister Y S Vivekananda Reddy.

The top court transferred the matter to the High Court of Telangana at Hyderabad and directed it to consider, decide and dispose of the application for cancellation of the bail on merits and in light of the observations made.

”As the High Court has not at all considered on merits the application for cancellation of the bail, the matter is to be remitted to the High Court for considering the said application afresh in accordance with law and on merits and in light of the observations made,” it said.

Vivekananda Reddy, younger brother of late Andhra Pradesh Chief Minister Y S Rajasekhara Reddy and uncle of incumbent Chief Minister Y S Jagan Mohan Reddy, was found murdered at his residence in Pulivendula on March 15, 2019. (PTI)

NEW DELHI, (PTI): The Supreme Court on Monday dismissed a plea by BJP leader and former union minister Syed Shahnawaz Hussain challenging the Delhi High Court order for registration of an FIR against him on a woman’s complaint alleging rape.

”Let’s there be a fair investigation and, if there is nothing, it will exonerate you,” a bench of Justices S Ravindra Bhat and Dipankar Datta told the counsel appearing for Hussain.

Senior advocates Mukul Rohatgi and Siddharth Luthra, appearing for Hussain, told the bench that complaints after complaints were filed by the complainant woman against the politician.

”There are complaints after complaints which were investigated by the police and nothing was found. It cannot go on and on,” Rohatgi argued, adding there was a ”series of consistent attacks” against Hussain.

However, the bench observed, ”We find no reason to interfere.” The high court had on August 17 last year dismissed Hussain’s plea challenging a trial court order directing the Delhi Police to register an FIR against him, saying there was no perversity in the 2018 order.

The top court had on August 22, 2022 stayed the operation of the high court order.

During the earlier hearing in the matter before the apex court, Hussain’s counsel had argued that the complaint was ”bogus” and ”malicious”.

In 2018, a Delhi-based woman had approached a lower court seeking registration of an FIR against Hussain for alleged rape, which the BJP leader has denied.

A magisterial court had on July 7, 2018 ordered registration of an FIR against Hussain, saying a cognisable offence was made out in the complaint.

This was challenged by the BJP leader before a sessions court which had dismissed his plea.

In its order on Hussain’s appeal, the high court had said, ”There is no merit in the present petition. The petition is dismissed. The interim orders (for stay on action against Husssain) stand vacated. The FIR be registered forthwith. The investigations will be completed and a detailed report under Section 173 CrPC be submitted before the learned MM (metropolitan magistrate) within three months.” The high court had also noted that while reference was made in the police’s status report to the recording of the statement of the prosecutrix on four occasions, there was no explanation as to why the FIR was not lodged.

”The FIR only puts the machinery into operation. It is a foundation for the investigation of the offence complained of. It is only after investigations that the police can come to the conclusion whether or not an offence had been committed and if so by whom. In the present case, there seems to be a complete reluctance on the part of the police to even register an FIR,” the high court had said. (PTI)

NEW DELHI, (PTI): A statement made by a minister cannot be attributed vicariously to the government even when applying the principle of collective responsibility, the Supreme Court said on Tuesday.

A five-judge Constitution bench headed by Justice S A Nazeer said no additional restrictions against free speech can be imposed except those mentioned under Article 19(2) of the Constitution.

”Statement made by a minister even if traceable to any affairs of state or protecting the government cannot be attributed vicariously to the government even applying the principle of collective responsibility.

”Fundamental right under Article 19(1)(a) can be exercised even against other instrumentalities other than the state,” the bench, also comprising Justices B R Gavai, A S Bopanna, V Ramasubramanian, said.

Justice B V Nagarathna, who was also part of the bench, wrote a separate judgement and said freedom of speech and expression is a much needed right so that citizens are well informed and educated on governance.

She said hate speech strikes at the foundational values by making society unequal and also attacks citizens from diverse backgrounds especially ”in a country like us that is ‘Bharat’.” The judgement came on a question of whether restrictions can be imposed on a public functionary’s right to freedom of speech and expression. (PTI)

KOCHI, (PTI): The Kerala High Court has declared as unconstitutional the stipulation of one year of separation or more for filing a divorce petition by mutual consent under the Divorce Act, saying it is violative of fundamental rights.

A division bench of the high court comprising Justice A Muhamed Mustaque and Justice Shoba Annamma Eapen also observed the Union government should seriously consider having a uniform marriage code in India to promote common welfare and the good of spouses in matrimonial disputes.

Observing that the law differentiates parties based on religion in regard to welfare in a matrimonial relationship, the high court said in a secular country, the legal paternalistic approach should be on the common good of the citizens rather than based on religion.

”The state’s concern must be to promote the welfare and good of its citizens, and religion has no place in identifying the common good,” it said.

The High Court gave this order on a plea filed by a young Christian couple challenging the fixation of the minimum period of separation of one year under Section 10A of the Divorce Act, 1869 as being violative of fundamental rights.

Addressing the question whether spouses have the right to separate their marriage mutually before the aura of the marriage period of one year vanishes, the court held that the fixation of the minimum period of separation of one year as stipulated under Section 10A is violative of the fundamental right and ”accordingly, strike it down”.

”W.P.(C).No.28317/2022 is allowed declaring that the stipulation of the one-year period or more for the purpose of filing a divorce petition by mutual consent under Section 10A is violative of fundamental right and is declared unconstitutional,” it said.

The high court also directed the family court to dispose of the divorce plea filed by the couple within two weeks and grant a decree of divorce without insisting on further presence of parties.

It observed that the legislature’s competence to enact laws to regulate divorce cannot be doubted as it has an avowed intention to uphold the common good and welfare of the people and society.

”The state knows what is best for the couple and the community. The grounds of divorce on a fault basis have regulated divorce but in a practical sense, it has resulted in hardships rather than in promoting welfare. The impact of welfare objectives must reflect on the parties,” the court said.

”Today, the family court has become another battleground, adding to the agonies of parties seeking a divorce. This is obvious for the reason that the substantial legislation enacted prior to Family Courts Act was fashioned on a platform to adjudicate upon adversarial interests rather than to promote the common interest or good.

”The time has come for a change in the law applicable to the parties on a common uniform platform,” the high court said. (PTI)