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Friday, December 16, 2016

Standing up during National Anthem - legal implications.

Standing up during National Anthem - legal implications ...

MADHAVAN went to theater just for a leisure. He was a bit tired too and wanted to relax. When the show was about to start, they played National Anthem with tri colour flag in the backdrop. He did not bother to stand, it was not to insult the National Anthem, but he was so tired and was not in such a mood to think that he ought to have stand up and otherwise, it would land him up in trouble. He realised the trouble, when booked by the Police and charged offences under section 188 of IPC and section 3 of Prevention of Insults to National Honour Act 1971. He never, ever met with any police cases, and it was his first case; he decided then and there- not to watch movies further in theaters.

The section 3 of Prevention of Insults to National Honour Act 1971 does not mandates that all shall stand during National Anthem. It only penalise if any one voluntarily disturbs playing or attending of National Anthem. But recently, 20 persons were arrested in not standing up during the play of National Anthem. Pursuant to the direction from Supreme Court on 30.11.2016 in a Public Interest Litigation, seven directions were issued to be complied while singing National Anthem. The directions include, the audience should mandatorily stand while the playing of National Anthem in cinema theaters, with national flag in the backdrop. 

DIRECTIONS BY SUPREME COURT

1. There shall be no commercial exploitation to give financial advantage or any kind of benefit. To elaborate, the National Anthem should not be utilized by which the person involved with it either directly or indirectly shall have any commercial benefit or any other benefit. 

2. There shall not be dramatization of the National Anthem and it should not be included as a part of any variety show. It is because when the National Anthem is sung or played it is imperative on the part of every one present to show due respect and honour. To think of a dramatized exhibition of the National Anthem is absolutely inconceivable. 

3. National Anthem or a part of it shall not be printed on any object and also never be displayed in such a manner at such places which may be disgraceful to its status and tantamount to disrespect. It is because when the National Anthem is sung, the concept of protocol associated with it has its inherent roots in National identity, National integrity and Constitutional Patriotism. 

4. All the cinema halls in India shall play the National Anthem before the feature film starts and all present in the hall are obliged to stand up to show respect to the National Anthem.

5.  Prior to the National Anthem is played or sung in the cinema hall on the screen, the entry and exit doors shall remain closed so that no one can create any kind of disturbance which will amount to disrespect to the National Anthem. After the National Anthem is played or sung, the doors can be opened. 

6. When the National Anthem shall be played in the Cinema Halls, it shall be with the National Flag on the screen. 

7. The abridge version of the National Anthem made by any one for whatever reason shall not be played or displayed.

WHAT IS THE OFFENCE

Now the question faced by the law enforcing authorities, is about the sections to impose while arresting such persons. The section 3 of Prevention of Insults to National Honour Act 1971 says, whoever intentionally prevents the singing of the Indian National Anthem or causes disturbances to any assembly engaged in such singing shall be punished with imprisonment for a term which may extend to three years, or with fine or with both. 

But none in the recent incidents, none obstructed the singing of National Anthem or prevents it. Nor they caused any disturbances to any assembly engaged in such singing. Even then, arrest of 20 persons were reported in Kerala. 

Then the remedy for the police is to impose the section 188 of Indian Penal Code, which says, about the disobedience to order duly promulgated by a public servant. The section is particular that, such disobedience causes to tender to cause obstruction, annoyance or injury, or risk of obstruction, annoyance of injury to any persons lawfully employed.. But this section cannot be charged unless a written complaint by a public servant who is concerned for the contempt of his lawful order. In 2010, C Muniyappan V. State of Tamil Nadu, the Supreme court of India held that Section 195(a)(i) of Code of Criminal Procedure bars the court from taking cognizance of offence under section 188 of IPC, if there is not a written complaint by a public servant. 

HERE THE QUESTION is, if any one does not stand in the cinema theater while playing National Anthem, is there any public servant to give a written complaint; if not so, how the police will charge the case under section 188 of IPC ?

THE SECOND QUESTION is, if a person simply sit in the theater without standing up and not causing any disturbance or not preventing anyone from singing, can an offence under section 3 of Prevention of Insults to National Honour Act 1971 be charged ?

These all are questions to be mooted again and again.
But one thing we must bear in mind, during 1960s, singing of National Anthem was mandatory in cinema theaters and the common run obeyed it without any objection.  In the efflux of time, the mindset of generation has been changed, they may not like a forceful impose to express their honour to the National Anthem, but they may honour it in their own way and it is a larger question to be debated indeed.

Friday, October 28, 2016

Public Interest Litigation to make yoga mandatory on schools

സർക്കാരിന്  പൗരന്റെ ആരോഗ്യം മെച്ചപ്പെടുത്തുന്നതിന് ഭരണഘടനാപരമായ ചുമതലയുണ്ടോ?

ഉണ്ടെന്നും അതുകൊണ്ട് യോഗ പഠനം സ്കൂളുകളിൽ നിർബന്ധമാക്കണം എന്നാവശ്യപ്പെട്ട് നൽകിയ പൊതുതാൽപ്പര്യ ഹർജി സുപ്രീം കോടതി ഫയലിൽ സ്വീകരിച്ചു, വാദം കേൾക്കാൻ തീരുമാനിച്ചു. കേസ് നവംബർ 17ന് കേൾക്കും.
ഭരണഘടനയുടെ അനുഛേദം 21 പ്രകാരവും 39 e, 39 f, 47 പ്രകാരവും സർക്കാരിന് ജനങ്ങളുടെ ആരോഗ്യം മെച്ചപ്പെടുത്താൻ  ചുമതലയുണ്ട് എന്നാണ് വാദം. അതിനായി എല്ലാ  സ്കൂളുകളിലും യോഗ നിർബന്ധമാക്കണം.  ഇതു സംബന്ധിച്ച് ദേശീയ നയം രൂപീകരിക്കണമെന്നുമാണ് വാദം
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Friday, October 21, 2016

Decision to number the buildings... Kerala lsgd

തദ്ദേശസ്വയംഭരണ വകുപ്പിലെ പ്രധാന തീരുമാനങ്ങൾ/വാർത്തകൾ...

1  ഇന്ത്യയിലെ ജനസാന്ദ്രതയുള്ള സംസ്ഥാനങ്ങളില്‍ ഗ്രാമീണമേഖലയെ സമ്പൂർണ്ണ വെളിയിട വിസര്‍ജ്ജനരഹിതമായി(ഒ.ഡി.എഫ്) പ്രഖ്യാപിക്കുന്ന ആദ്യ സംസ്ഥാനമായി കേരളം മാറാന്‍ പോവുകയാണ്. നവംബര്‍ 1 നാണ് ഇത് സംബന്ധിച്ച സംസ്ഥാനതല പ്രഖ്യാപനം നടത്തുന്നത്. ഇതിനായി പഞ്ചായത്തുകളില്‍ 174720ശുചിമുറികള്‍ കൂടി നിര്‍മ്മിക്കും. 938പഞ്ചായത്തുകളെ ഉള്‍ക്കൊള്ളുന്ന 11ജില്ലാ പഞ്ചായത്തുകള്‍ ഇതിനകം വെളിയിട വിസര്‍ജ്ജനമുക്തമായി(ഒ.ഡി.എഫ്) പ്രഖ്യാപിച്ചുകഴിഞ്ഞു.

2 കെട്ടിട നിര്‍മ്മാണ നിയന്ത്രണചട്ടങ്ങള്‍ ലംഘിച്ചതുമൂലം വീടുകള്‍ക്ക് നമ്പറിട്ട് നല്കാത്തതിനാൽ തദ്ദേശസ്വയം ഭരണസ്ഥാപനങ്ങളില്‍ നിന്ന് വൈദ്യുതി കണക്ഷനും മറ്റും ആവശ്യമായ സാക്ഷ്യപത്രങ്ങള്‍ ലഭിക്കാത്ത സാഹചര്യമുണ്ട്. 1500സ്ക്വയര്‍ഫീറ്റ് വരെയുള്ള അത്തരംകെട്ടിടങ്ങള്‍ക്ക് താല്ക്കാലിക നമ്പര്‍ നല്കുന്നതിന് നടപടി സ്വീകരിക്കുന്നതാണ്.

3 തിരുവനന്തപുരം നഗരം കേന്ദ്ര ഗവണ്‍മെന്‍റ് പ്രഖ്യാപിച്ച സ്മാര്‍ട്ട് സിറ്റിമിഷനില്‍ ഉള്‍പ്പെടുത്തിയതായി ഔദ്യോഗികാറിയിപ്പ് ലഭ്യമായിട്ടുണ്ട്.കൊച്ചി ഉള്‍പ്പെടെ മുഴുവന്‍ നഗരസഭ കളുടെയും മാസ്റ്റര്‍പ്ലാന്‍ തയ്യാറാക്കി കരട് പ്രസിദ്ധീകരിക്കും. കോഴിക്കോട് നഗരത്തിന്റെ മാസ്റ്റര്‍ പ്ലാന്‍ അന്തിമമായി അംഗീകരിച്ചു.

4 കെട്ടിട നിര്‍മ്മാണ പെര്‍മിറ്റ് ഓണ്‍ലൈനായി സമര്‍പ്പിക്കാനും,ഫീസടയ്ക്കാനും പെര്‍മിറ്റ് സമയബന്ധിതമായി നല്കാനുമായിIKM വികസിപ്പിച്ചെടുത്ത "സങ്കേതം"സോഫ്റ്റ് വെയര്‍ ഉടനെ തന്നെ എല്ലാ തദ്ദേശസ്വയംഭരണസ്ഥാപനങ്ങളിലും നടപ്പിലാക്കി പെർമിറ്റ് നടപടി സുതാര്യവും സമയബന്ധിതവുമാക്കും.

5 തദ്ദേശസ്വയംഭരണസ്ഥാപനങ്ങളെ അഴിമതിമുക്തമാക്കുന്നതിനും,സേവനങ്ങള്‍ നല്കുന്നതിലെ കാലതാമസം കുറയ്ക്കുന്നതിനും ഓണ്‍ലൈന്‍ പരാതി പരിഹാരസെല്‍ “FOR THE PEOPLE” ഉടന്‍ തന്നെ ആരംഭിക്കും.

6 പി.എസ്.സി നിയമനവും നിയമനവുമായി ബന്ധപ്പെട്ട കോടതി നടപടികളും ത്വരിതപ്പെടുത്തി തദ്ദേശസ്വയംഭരണ സ്ഥാപനങ്ങളിലെ ഒഴിവുകള്‍ എത്രയും പെട്ടെന്ന് നികത്തും.

7 കുടുംബശ്രീയെ ലോകോത്തര മാതൃകയായി ശക്തിപ്പെടുത്തും.ആശ്രയപദ്ധതി വ്യാപിപ്പിക്കും.

8 ജില്ലാതല ആസൂത്രണസമിതികള്‍ ഫലപ്രദമായി പ്രവര്‍ത്തിക്കുന്നു എന്ന് ഉറപ്പുവരുത്തും. ജില്ലാകളക്ടര്‍മാര്‍ നേരിട്ട് യോഗത്തില്‍ പങ്കെടുക്കുന്നു എന്നും, പീരിയോഡിക്കല്‍ അവലോകനം നടത്തുന്നു എന്നും ഉറപ്പുവരുത്തും.

9 പദ്ധതി തുകയില്‍ സ്പില്‍ ഓവര്‍ പ്രവൃത്തികള്‍ക്കുള്ള തുക പൂര്‍ണമായും ക്യാരി ഓവര്‍ ചെയ്യാന്‍ അനുവദിക്കും...
2016 October

Sunday, October 16, 2016

Mutual divorce in foreign courts are legal in india... Says Kerala High Court

The Kerala High Court in Augustine Kalathil Mathew v. Marriage Officer, North Paravur., has decided that mutual divorces in foreign courts are acceptable in India under Section 13 of the CPC.

The judgment delivered by Justice P.B. Suresh Kumar allowed petitioner Augustine Mathew’s prayer for quashing the Marriage Officer’s order that stated that divorces obtained in foreign courts would be acceptable only when these were solemnised by an Indian court.

In this case, Augustine was married to Dayana Cheeran Chakunny and both of them were working in the United Arab Emirates (UAE). Augustine obtained divorce from his wife by mutual consent from the UAE Personal Status Court.

On the strength of divorce certification obtained in the UAE, the petitioner gave notice to the Marriage Officer in India under the Special Marriage Act, 1954, to remarry. In response, he was informed by the Marriage Officer that the divorce certification had to be confirmed by an Indian court before Augustine could solemnise his second marriage. The exhibit containing the communication issued by the Marriage Officer to the petitioner in this connection was presented in the court.

Augustine pleaded that the Marriage Officer is statutorily bound by law to act upon the divorce certification issued by the UAE Personal Status Court, and thus, sought to quash the order of the Marriage Officer.

The Marriage Officer submitted his statement that the petitioner and his divorced wife were Christians and the UAE Personal Status Court, from which the petitioner obtained divorce, does not recognise the law of India applicable to the parties. The statement iterated that divorce obtained by the petitioner [W.P.(C)No.26008/2016-A] was in accordance with Muslim Personal Law and, therefore, could not be accepted in an Indian court under Section 13 of the CPC.

It was highlighted during the proceeding that Section 13 of the Code of Civil Procedure provides that a foreign judgment shall not be conclusive where it appears on the face of the proceedings to be founded on an incorrect view of international law or a refusal to recognise the law of India in cases in which such law is applicable.

After careful perusal, the court relied on a Supreme Court judgment Y. Narasimha Rao v. Y. Venkata Lakshmi [(1991) 3 SCC 451] where section 13 CPC was interpreted particularly in regard to recognition of foreign judgments in personal and family matters, particularly in matrimonial disputes.

From reading of the judgment, it was clarified that although the general rule is that a foreign matrimonial judgment can be recognised in India only if the jurisdiction assumed by the foreign court as well as the grounds on which the relief is granted are in accordance with the matrimonial law under which the parties are married, such judgments can be accepted as conclusive in India where the person seeking relief voluntarily and effectively submits to the jurisdiction of the forum and consents to the grant of the relief although the jurisdiction of the forum is not in accordance with the provisions of the matrimonial law of the parties.

The court held that the divorce certification had to be recognised, saying:

“As stated above, the materials on record indicate beyond doubt that the petitioner and his divorced wife have voluntarily and effectively submitted to the jurisdiction of the UAE Personal Status Court and consented to grant divorce to each other, although the jurisdiction of the said forum is not in accordance with the provisions of the matrimonial law applicable to them.”

Thus, the petition was finally allowed and the order of the Marriage Officer was quashed, and he was also directed by the court to solemnise the marriage of Augustine for which he had issued notice, under the Special Marriage Act

Courtesy
Live Law

Full bench of kerala high Court issued guidelines for second Bail applications

Full bench of kerala high Court issued guidelines for second Bail applications

BA 797/2015

The guidelines enumerated are as follows:

a) The subsequent bail application by the same accused will be entertained only if there is change of circumstance for filing such application.

b) Subsequent bail application filed by the same accused shall be heard by the learned judge who has considered and passed orders on the earlier bail application/applications in the same crime.

c) The application filed by the co-accused may be considered and ordered by any other learned judge having roster during the relevant point of time and such application need not be placed before the Judge who passed orders earlier on the application filed by another accused.

d) The subsequent bail application filed by the same accused in the same crime during Onam and Christmas holidays may wait for orders till the end of the said holidays, in case, if the learned judge who has passed orders on the earlier application is not available for orders during those holidays or if he is not designated as a vacation judge.

e) In case if the subsequent bail application is filed by the same accused during summer vacation and if the learned judge who passed earlier order is not available for orders or if he is not a designated vacation judge, the memo filed under section 8 of the High Court Act on behalf of the accused-applicant be listed before the learned Judge nominated to hear the bail applications during the summer vacation. However, the fact that an earlier bail application in the same crime is dismissed is to be brought to the notice of that vacation judge. The factor of listing the matter during summer vacation or refusing to do so can be decided by the learned vacation judge sitting in summer vacation.

f) If the learned judge who passed order on the earlier bail application filed by the same accused in the same crime is sitting in the Division Bench, the subsequent application for bail may be brought to the notice of the Hon'ble the Chief Justice by the Registry so as to enable the Hon'ble the Chief Justice to make necessary arrangement to have a special sitting of the said learned Judge.

g) The counsel for the accused who is filing the subsequent application for bail in the same crime shall mention in the application seeking bail about the disposal of earlier bail application filed by this very accused. A copy of the order passed on such application earlier in respect of the same accused shall also be produced along with the second or successive bail applications.

h) It is the duty of the public prosecutor concerned to bring to the notice of the court, as far as possible, about the earlier bail application filed by the same accused as well as about any application filed by the co- accused in the same crime and the result thereof, either by filing the statement of objections or at least at the time of arguments on the bail application.

Friday, October 7, 2016

The law commission of India has invited public opinion on UNIFORM CIVIL CODE - questionnaire

The law commission of India has invited public opinion on UNIFORM CIVIL CODE.
The Government Order and Questionnaire.

Date of submission - 45 days from 7.10.2016 (date of appeal)

Download - Order and Questionnaire.

UNIFORM CIVIL CODE - SUBMIT OPINION-QUESTIONNAIRE

Send to email - to address   -      lci-dla@nic.in


Postal Address - 

Law Commission of India,
14th Floor, H T House,
Kasturba Gandhi Maarg, New Delhi 110001.

Insisting to live separate from parents is cruelty .. family law..a ground for divorce... Supreme Court

Insisting to live separate from parents is cruelty .. family law..a ground for divorce.. Supreme Court.

മാതാപിതാക്കളെ വേർപിരിഞ്ഞ് താമസിക്കാൻ ഭർത്താവിനെ നിർബന്ധിക്കുന്നത് ക്രൂരത എന്ന് സുപ്രീം കോടതി

വിവാഹം കഴിഞ്ഞാൽ പുരുഷനും സ്ത്രീയും പിന്നെ രണ്ടല്ല, ഒന്നാണ് എന്നാണ് വേദവാക്യം. പക്ഷെ സ്വന്തം മാതാപിതാക്കളെ ഉപേക്ഷിച്ച് തനിച്ച് താമസിക്കാൻ ഭാര്യ ഭർത്താവിനെ നിർബന്ധിച്ചാൽ എന്ത് ചെയ്യും ? അനുസരിച്ചില്ലെങ്കിൽ ആത്മഹത്യ ചെയ്യുമെന്ന് ഭീഷണിയും. ഇത്രയും മതി ഒരു ഭർത്താവിന് കുടുംബകോടതിയിൽ ഭാര്യക്കെതിരെ  ക്രൂരത ആരോപിച്ച് വിവാഹമോചനത്തിന് ഹർജി നൽകാൻ.  മാതാപിതാക്കളെ പിരിഞ്ഞ് താമസിക്കാൻ നിർബന്ധിക്കുന്നതും ആത്മഹത്യ ചെയ്യുമെന്ന് ഭീഷണി മുഴക്കുന്നതും ക്രൂരതയുടെ നിർവ്വചനത്തിൽ വരുമെന്നും, വിവാഹമോചനത്തിന്  മതിയായ കാരണമാണെന്നും സുപ്രീം കോടതി വ്യക്തമാക്കി.

Civil Appeal 3253/2008
Judgement dated 6.10.16

ഷെറി
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Thursday, October 6, 2016

whether co-operative Societies fall under RTI ?

Co-operative societies do not fall within the ambit of Right to Information Act, the Supreme Court has said while quashing a Kerala government circular to bring all such societies within the scope of the transparency law.

A bench of justices K.S. Radhakrishnan and A.K. Sikri said mere supervision or regulation of a body by government would not make that body a public authority and quashed the Kerala High Court’s order holding the circular valid.

“Societies are, of course, subject to the control of the statutory authorities like Registrar, Joint Registrar, the Government, etc. but cannot be said that the State exercises any direct or indirect control over the affairs of the society which is deep and all pervasive.

“Supervisory or general regulation under the statute over the co-operative societies, which are body corporate does not render activities of the body so regulated as subject to such control of the State so as to bring it within the meaning of the State or instrumentality of the State,” the bench said.

The State Government had informed the Registrar of Co-operative Societies in May 2006 that all institutions formed by laws made by State Legislature is a public authority and, therefore, all co-operative institutions coming under the administrative control of the Registrar of Co-operative Societies are also public authorities.

Quashing the state government’s decision, the bench said that power exercised by the Registrar over the societies is merely supervisory and regulatory.

“The mere supervision or regulation as such by a statute or otherwise of a body would not make that body a public authority within the meaning of Section 2(h)(d)(i) of the Act.

In other words just like a body owned or body substantially financed by the appropriate government, the control of the body by the appropriate government would also be substantial and not merely supervisory or regulatory,” the bench said.

courtesy
The Hindu Oct 2013

Thursday, September 15, 2016

Wednesday, September 14, 2016

SOUMYA RAPE AND MURDER CASE- ACCUSED ACQUITTED OF MURDER AND CONVICTED ON RAPE - SUPREME COURT


കേരളത്തെ വല്ലാതെ പിടിച്ചു കുലുക്കിയ ഒരു മരണമായിരുന്നു സൌമ്യയുടെത്. ഓടുന്ന ട്രെയിനില്‍ ഒരു പെണ്‍കുട്ടിയെ ബലാല്‍സംഗം ചെയ്തു ഒടുവില്‍ അവള്‍ മരണപ്പെട്ട സംഭവം. .... വിചാരണ കോടതി വധശിക്ഷക്ക് വിധിച്ചത് ഹൈക്കോടതി ശരിവച്ചു. പക്ഷെ സുപ്രീം കോടതി കൊലപാതകക്കുറ്റം പ്രതിയാണ് ചെയ്തത് എന്ന് പ്രോസിക്ക്യുഷന് തെളിയിക്കാനായില്ല എന്ന കാരണത്താല്‍ കൊലക്കുട്ടത്തില്‍ നിന്ന് പ്രതിയെ ഒഴിവാക്കി. ബലാല്‍സംഗം എന്ന കുറ്റത്തിന് മാത്രമായി ശിക്ഷ ചുരുക്കി.

The Supreme Court has acquitted Govindachami, the accused in Soumya Rape and Murder case, of Murder charges while upholding the conviction under Section 376 IPC for rape. Partly allowing the Appeal preferred by the Accused Govindachami, the Apex Court Bench comprising of Justice Ranjan Gogoi, Justice Prafulla C. Pant and Justice Uday Umesh Lalit has set aside the death penalty and has sentenced him to rigorous imprisonment for seven years. 

Prosecution Case The incident occurred when 23-year-old Soumya MG was travelling in Ernakulam-Shornur passenger train No. 56608 on 1 February, 2011, back home from Kochi to Shornur. Accused Govindachami, who noticed Soumya travelling alone in the ladies’ compartment, trespassed into it as the train left Vallathole Nagar and caught hold of her with the intention to commit rape and robbery. As a result of the scuffle, she was dropped out of the moving train. The accused, too, sprang out of the moving train at Vettikattiri Desom at Vallathole Nagar and returned to the place where Soumya was lying in a daze. He shifted her to a nearby lonely place and, placing her in between two railway tracks, forcibly had sexual intercourse with her and also took away her mobile phone, worth Rs 1600. She was found later after co-passengers alerted the Railways authorities and was admitted to the Medical College Hospital in Thrissur immediately. However, she succumbed to her injuries on 6 February, 2011. The Trial (2011) The accused was tried at a fast track court in Thrissur. 

Convicting the accused for causing rape and murder and awarding him death penalty, the trial court judge K Raveendra Babu observed: “The victim was dazed even at the time of dropping. The accused committed the rape on the victim after the fall. The entire offence was extremely brutal in character and carried out in a domain manner. Therefore, I am of the clear view that the accused deserve nothing less than the extreme penalty of death. Lesser penalty is inadequate. If a lesser penalty is given, the society may lose faith in the efficacy of the justice system.” The court observed: “The bad antecedents of the accused and his subsequent conduct indicate that he is a menace to the society and is incapable of rehabilitation. The extreme depravity with which the offences were committed and the merciless manner in which rape was committed brings the case within the category of rarest of rare case which merits the death penalty.” Read the Trial Court Judgment here. 

An appeal preferred by the accused was heard by the Kerala High Court Bench comprising Justice TR Ramachandran Nair and Justice B Kemal Pasha, which confirmed the conviction recorded by the trial court. Justice Pasha who authored the judgment, while confirming death penalty, observed: “The murder of the girl in these circumstances makes this a case of extreme culpability. The manner in which the girl was raped, robbed and murdered, the approach, and the method adopted by the accused disclose the traits of outrageous criminality in the behaviour of the accused and his premeditated action. This approach of the accused reveals a brutal mind-set of the highest order. The accused is proved to be a dare criminal.” Read the High Court judgment here. 

The accused preferred special leave petition in the Supreme Court and the criminal appeal was finally heard by a three-judge Bench comprising Justice Ranjan Gogoi, Justice Prafulla C Pant and Justice Uday Umesh Lalit on 8 September, 2016. There was a huge media outrage when the Bench, during the course of hearing, expressed doubts with regard to Soumya’s ‘jump’ from the train. Reserving the judgment, the Bench remarked: “The court is convinced that Soumya was raped. The court also understands that she died due to head injury. However, it should be clarified whether Soumya was pushed from the train or whether she herself jumped from the train.”

However, today the Supreme Court pronounced its order. The Court acquitted the accused of murder charges. But the court confirmed the conviction on charges of rape and awarded life imprisonment.

Download the Judgment of Supreme Court

Supreme Court Judgment - Soumya/Saumya Rape and Murder case

The Judgment of High Court of Kerala (Appeal)
download

Courtesy - Live Law





SOUMYA RAPE AND MURDER CASE- ACCUSED ACQUITTED OF MURDER AND CONVICTED ON RAPE - SUPREME COURT


കേരളത്തെ വല്ലാതെ പിടിച്ചു കുലുക്കിയ ഒരു മരണമായിരുന്നു സൌമ്യയുടെത്. ഓടുന്ന ട്രെയിനില്‍ ഒരു പെണ്‍കുട്ടിയെ ബലാല്‍സംഗം ചെയ്തു ഒടുവില്‍ അവള്‍ മരണപ്പെട്ട സംഭവം. .... വിചാരണ കോടതി വധശിക്ഷക്ക് വിധിച്ചത് ഹൈക്കോടതി ശരിവച്ചു. പക്ഷെ സുപ്രീം കോടതി കൊലപാതകക്കുറ്റം പ്രതിയാണ് ചെയ്തത് എന്ന് പ്രോസിക്ക്യുഷന് തെളിയിക്കാനായില്ല എന്ന കാരണത്താല്‍ കൊലക്കുട്ടത്തില്‍ നിന്ന് പ്രതിയെ ഒഴിവാക്കി. ബലാല്‍സംഗം എന്ന കുറ്റത്തിന് മാത്രമായി ശിക്ഷ ചുരുക്കി.

The Supreme Court has acquitted Govindachami, the accused in Soumya Rape and Murder case, of Murder charges while upholding the conviction under Section 376 IPC for rape. Partly allowing the Appeal preferred by the Accused Govindachami, the Apex Court Bench comprising of Justice Ranjan Gogoi, Justice Prafulla C. Pant and Justice Uday Umesh Lalit has set aside the death penalty and has sentenced him to rigorous imprisonment for seven years. 

Prosecution Case The incident occurred when 23-year-old Soumya MG was travelling in Ernakulam-Shornur passenger train No. 56608 on 1 February, 2011, back home from Kochi to Shornur. Accused Govindachami, who noticed Soumya travelling alone in the ladies’ compartment, trespassed into it as the train left Vallathole Nagar and caught hold of her with the intention to commit rape and robbery. As a result of the scuffle, she was dropped out of the moving train. The accused, too, sprang out of the moving train at Vettikattiri Desom at Vallathole Nagar and returned to the place where Soumya was lying in a daze. He shifted her to a nearby lonely place and, placing her in between two railway tracks, forcibly had sexual intercourse with her and also took away her mobile phone, worth Rs 1600. She was found later after co-passengers alerted the Railways authorities and was admitted to the Medical College Hospital in Thrissur immediately. However, she succumbed to her injuries on 6 February, 2011. The Trial (2011) The accused was tried at a fast track court in Thrissur. 

Convicting the accused for causing rape and murder and awarding him death penalty, the trial court judge K Raveendra Babu observed: “The victim was dazed even at the time of dropping. The accused committed the rape on the victim after the fall. The entire offence was extremely brutal in character and carried out in a domain manner. Therefore, I am of the clear view that the accused deserve nothing less than the extreme penalty of death. Lesser penalty is inadequate. If a lesser penalty is given, the society may lose faith in the efficacy of the justice system.” The court observed: “The bad antecedents of the accused and his subsequent conduct indicate that he is a menace to the society and is incapable of rehabilitation. The extreme depravity with which the offences were committed and the merciless manner in which rape was committed brings the case within the category of rarest of rare case which merits the death penalty.” Read the Trial Court Judgment here. 

An appeal preferred by the accused was heard by the Kerala High Court Bench comprising Justice TR Ramachandran Nair and Justice B Kemal Pasha, which confirmed the conviction recorded by the trial court. Justice Pasha who authored the judgment, while confirming death penalty, observed: “The murder of the girl in these circumstances makes this a case of extreme culpability. The manner in which the girl was raped, robbed and murdered, the approach, and the method adopted by the accused disclose the traits of outrageous criminality in the behaviour of the accused and his premeditated action. This approach of the accused reveals a brutal mind-set of the highest order. The accused is proved to be a dare criminal.” Read the High Court judgment here. 

The accused preferred special leave petition in the Supreme Court and the criminal appeal was finally heard by a three-judge Bench comprising Justice Ranjan Gogoi, Justice Prafulla C Pant and Justice Uday Umesh Lalit on 8 September, 2016. There was a huge media outrage when the Bench, during the course of hearing, expressed doubts with regard to Soumya’s ‘jump’ from the train. Reserving the judgment, the Bench remarked: “The court is convinced that Soumya was raped. The court also understands that she died due to head injury. However, it should be clarified whether Soumya was pushed from the train or whether she herself jumped from the train.”

However, today the Supreme Court pronounced its order. The Court acquitted the accused of murder charges. But the court confirmed the conviction on charges of rape and the imprisonment of 7 years.

The Judgment of High Court of Kerala (Appeal)
download

Courtesy - Live Law





Saturday, September 10, 2016

Supreme Court Directions regarding FIR

The Supreme Court of India in Youth Bar Association of India Vs Union of India and Others has issued 10 important Guidelines on First Information Report. The Bench comprising of Justices Dipak Misra and C.Nagappan has issued the following Guidelines

(a) An accused is entitled to get a copy of the First Information Report at an earlier stage than as prescribed under Section 207 of the Cr.P.C.
(b) An accused who has reasons to suspect that he has been roped in a criminal case and his name may be finding place in a First Information Report can submit an application through his representative/agent/parokar for grant of a certified copy before the concerned police officer or to the Superintendent of Police on payment of such fee which is payable for obtaining such a copy from the Court. On such application being made, the copy shall be supplied within twenty-four hours.
(c) Once the First Information Report is forwarded by the police station to the concerned Magistrate or any Special Judge, on an application being filed for certified copy on behalf of the accused, the same shall be given by the Court concerned within two working days. The aforesaid direction has nothing to do with the statutory mandate inhered under Section 207 of the Cr.P.C.
(d) The copies of the FIRs, unless the offence is sensitive in nature, like sexual offences, offences pertaining to insurgency, terrorism and of that category, offences under POCSO Act and such other offences, should be uploaded on the police website, and if there is no such website, on the official website of the State Government, within twenty-four hours of the registration of the First Information Report so that the accused or any person connected with the same can download the FIR and file appropriate application before the Court as per law for redressal of his grievances. It may be clarified here that in case there is connectivity problems due to geographical location or there is some other unavoidable difficulty, the time can be extended up to forty-eight hours. The said 48 hours can be extended maximum up to 72 hours and it is only relatable to connectivity problems due to geographical location.
(e) The decision not to upload the copy of the FIR on the website shall not be taken by an officer below the rank of Deputy Superintendent of Police or any person holding equivalent post. In case, the States where District Magistrate has a role, he may also assume the said authority. A decision taken by the concerned police officer or the District Magistrate shall be duly communicated to the concerned jurisdictional Magistrate.
(f) The word ‘sensitive’ apart from the other aspects which may be thought of being sensitive by the competent authority as stated hereinbefore would also include concept of privacy regard being had to the nature of the FIR. The examples given with regard to the sensitive cases are absolutely illustrative and are not exhaustive.
(g) If an FIR is not uploaded, needless to say, it shall not enure per se a ground to obtain the benefit under Section 438 of the Cr.P.C.
(h) In case a copy of the FIR is not provided on the ground of sensitive nature of the case, a person grieved by the said action, after disclosing his identity, can submit a representation to the Superintendent of Police or any person holding the equivalent post in the State. The Superintendent of Police shall constitute a committee of three officers which shall deal with the said grievance. As far as the Metropolitan cities are concerned, where Commissioner is there, if a representation is submitted to the Commissioner of Police who shall constitute a committee of three officers. The committee so constituted shall deal with the grievance within three days from the date of receipt of the representation and communicate it to the grieved person.
(i) The competent authority referred to hereinabove shall constitute the committee, as directed herein-above, within eight weeks from today.
(j) In cases wherein decisions have been taken not to give copies of the FIR regard being had to the sensitive nature of the case, it will be open to the accused/his authorized representative/parokar to file an application for grant of certified copy before the Court to which the FIR has been sent and the same shall be provided in quite promptitude by the concerned Court not beyond three days of the submission of the application.
(k) The directions for uploading of FIR in the website of all the States shall be given effect from 15th November, 2016.
Courtesy Live Law

Thursday, September 8, 2016

Rajasthan high court quashed rape case FIR on marriage with victim.. Against the supreme court judgment.

The HC judgment, giving scope to conciliation brought about by marriage between the accused and the victim, is in direct violation of a Supreme Court verdict that leaves no scope for compromise and mediation in a rape case.

The Rajasthan High Court’s latest Judgment on a rape case goes against the Supreme Court ruling which states that in a case of rape or attempt of rape, there can be no question of compromise or mediation.

The court’s decision to quash all proceedings against a rape accused who filed a joint petition and appeared with the victim as a wedded couple, is against the SC verdict calling any compromise as ‘thoroughly and completely sans legal permissibility’.

The apex court Bench of Justice Dipak Misra and Justice Prafulla C. Pant had categorically stated in respect of cases where the rape accused marries the victim, that, “sometimes solace is given that the perpetrator of the crime has acceded to enter into wedlock with her, which is nothing but putting pressure in an adroit manner; and we say with emphasis that the courts are to remain absolutely away from this subterfuge to adopt a soft approach to the case, or any kind of liberal approach has to be put in the compartment of spectacular error. Or to put it differently, it would be in the realm of a sanctuary of error. We are compelled to say so as such an attitude reflects lack of sensibility towards the dignity, the élan vital, of a woman. Any kind of liberal approach or thought of mediation in this regard is thoroughly and completely sans legal permissibility”.

In this case, the victim and the accused filed a joint petition to quash the FIR filed earlier. The two claimed that the girl was forced by her parents to lodge a complaint, as they were against the relationship. It was out of her desire that she had entered into matrimony with the accused, the victim claimed.It was also pleaded that she has no grievances, whatsoever, against the other petitioners as well.The two provided documentary proof, including marriage certificate issued by Municipal Corporation of Greater Mumbai.

Taking cognizance of the candid disclosure by the girl that she has married the accused out of volition and that the latter has not committed any offence, whatsoever, and also the revelation that she was forced to file the FIR, Justice PK Lohra ordered quashing of the FIR and all proceedings, including investigations in the case, against the accused.

The Rajasthan High Court’s Judgment, giving scope to conciliation brought about by marriage between the accused and the victim, is in direct violation of the Supreme Court verdict, which leaves no scope for compromise and mediation in a rape case.

The Supreme Court’s judgment delivered on July 1, 2015, pronounced that any sort of compromise in a heinous case like rape is illegal against the spirit of justice. The apex court verdict had stated, “The dignity of a woman is a part of her non-perishable and immortal self and no one should ever think of painting it in clay.  There cannot be a compromise or settlement as it would be against her honour, which matters the most. It is sacrosanct.”
Courtesy
Live Law

Thursday, September 1, 2016

Transgenders can submit gender option in Civil Service Examination. .told UPSC by Delhi High Court

Delhi High Court has directed the Union Public Service Commission to take necessary steps to include ‘Transgender/Third Gender’ as a gender option in the application form for the Civil Services (Preliminary) Examination.
WPC  5994.2015 dated 22.8.16

Wednesday, August 31, 2016

All advocates enrolled after 2010 to submit declaration.. Says Bar Council

The Bar Council of India has issued a circular notifying all State Bar Councils to ask for submission of Declaration forms from the advocates enrolled after July 2010.The notification entails submission of necessary information in a prescribed format required for preparation of electoral rolls for elections to the State Bar Councils and also to update the existing ones.

The State Bar Councils are advised to take up the matter with prompt attention and circulate the format to all Bar Associations. The Declaration form is to be received in the office of the State Bar Council on or before 30th October 2016.
Courtesy Live Law

Case against whatsapp in Delhi High Court

വാട്ട്സാപ്പ് -സ്വകാര്യത ഇല്ലാതാക്കുന്ന നയത്തിനെതിരെ ഡൽഹി  ഹൈക്കോടതിയിൽ  പൊതുതാൽപ്പര്യ ഹർജി

മുമ്പ് വാഗ്ദാനം ചെയ്തിരുന്ന സ്വകാര്യത പിൻവലിക്കാൻ വാട്ട്സാപ്പ് മുതിരുന്നതിനെതിരെ ഡൽഹി ഹൈക്കോടതിയിൽ നൽകിയ ഹർജിയിൽ ടെലകോം വകുപ്പിനും ടെലികോം റെഗുലേറ്ററി അതോറിറ്റിക്കും നോട്ടീസ്. പരസ്യത്തിലൂടെയുള്ള ലാഭം മുന്നിൽ കണ്ട്   ഫെയിസ് ബുക്ക്, തുടങ്ങിയ മറ്റ് സംവിധാനങ്ങളിലേക്ക് വാട്ട്സാപ്പ് വിവരങ്ങൾ കൈമാറുന്നതിനെതിരെയാണ് ഹർജി. 2012 ജൂലൈ 7 ന് പുറത്തിറക്കിയിരുന്ന
നയത്തിൽ നിന്ന് വാട്ട്സാപ്പ് ഏകപക്ഷീയമായി പിൻമാറുന്നവെന്നാണ് ആരോപണം. ഇൻസ്റ്റന്റ് മെസേജിംഗ് നിരോധിക്കണമെന്നാവശ്യപ്പെട്ട് 2016 ജൂൺ മാസം നൽകിയ ഒരു പൊതുതാൽപ്പര്യ ഹർജിയിൽ കോടതി ഇടപെട്ടിരുന്നില്ല.

ഷെറി
niyamadarsi 2016(11)
www.sherryscolumn.com

Tuesday, August 30, 2016

Child Rights Commission intervened to stop TV show KUTTIPPATTALAM

....കുട്ടിപ്പട്ടാളം പെട്ടിയിലായി....
ബാലവാകാശ കമ്മിഷന്‍ ഇടപെടലിനെത്തുടര്‍ന്ന് പ്രമുഖമലയാളം ചാനലിലെ പരിപാടിയായ കുട്ടിപ്പട്ടാളം അവസാനിപ്പിച്ചു. കുട്ടികളില്‍ അധാര്‍മ്മികതയും മൂല്യചുതിയും ഉണ്ടാക്കുന്നതിനു ഈപരിപാടി കാരണമാകുന്നു എന്ന് പരാതി ഉണ്ടായിരുന്നു. വ്യങ്ങാര്‍ത്ഥം ഉള്ള ചോദ്യങ്ങള്‍ കുട്ടികളോട് ചോദിച്ചു അവര്‍ നല്‍കുന്ന നിഷ്കളങ്കമായ മറുപടികളില്‍ അശ്ലീലതയും മദ്യപാനവും ഗാര്‍ഹിക സംഘര്‍ഷങ്ങളും കണ്ടെത്തി സദസ്സില്‍ വലിയ ചിരിയുണ്ടാക്കാന്‍ ഈ പരിപാടിക്ക് കഴിഞ്ഞിരുന്നു. പരാതി പരിഹരിക്കാന്‍ കുട്ടികളുടെ മനശാസ്ത്രത്തില്‍ വൈദഗ്ദ്യം ഉള്ളവരെ വിളിച്ചു വരുത്തി കമ്മിഷന്‍ തെളിവെടുപ്പ് നടത്തി. അവരുടെ വിസ്താരത്തിലും ഇത്തരം പരിപാടികള്‍ കുട്ടികളുടെ സ്വഭാവ രൂപീകരണത്തെ പ്രതികൂലമായി ബാധിക്കും എന്ന നിഗമനത്തെ തുടര്‍ന്ന് പരിപാടി അവസാനിപ്പിക്കുകയാണ് എന്ന് ചാനലുകള്‍ സത്യവാങ്ങ്മൂലം നല്‍കുകയായിരുന്നു. 
Order No. 2560/10/LA2/2015/KeSCPCR
                                                   ഷെറി   
niyamadarsi 2016(10)
www.sherryscolumn.com

Thursday, August 25, 2016

If the educational institutions fail to comply the terms in brochure or prospectus, they have to face force of law

The High Court of Punjab and Haryana recently reiterated the principle that an admission brochure or prospectus has a force of law and needs to be strictly adhered to.

“Accordingly, respondents cannot be held liable for any deficiency in service and the petitioner was not entitled for refund in terms of the above Clause of Prospectus. It has time and again been held by six Full Bench decisions of this Court that admission brochure or the prospectus has a force of law which is to be strictly followed,” Justice G.S. Sandhawalia observed.

The Court was hearing a petition filed by Mr. Ankit Sharma, seeking quashing of a May, 2005 order passed by the Punjab State Consumer Disputes Redressal Commission, Chandigarh, whereby he was denied refund of Rs. 10,000. The amount had been forfeited by the Punjab Technical University, after the petitioner had failed to report to the college despite having been admitted in the first round of counseling.

The claim was dismissed by the District Consumer Disputes Redressal Forum, Ludhiana, relying on a specific clause in the Prospectus. The Court upheld the Forum’s decision and observed, “Accordingly, respondents cannot be held liable for any deficiency in service and the petitioner was not entitled for refund in terms of the above Clause of Prospectus.”
Courtesy LIVE LAW

Legality of compulsory retirement.. Supreme Court

Principles relating to Compulsory retirement ....
Excerpts from the judgement of Supreme Court in
Baikuntha Nath Das & Anr. Vs. Chief District Medical Officer, Baripada & Anr.
[ AIR 1992 SC 1020]

(i) An order of compulsory retirement is not a punishment. It implies no stigma nor any suggestion of misbehavior.

(ii) The order has to be passed by the Government on forming the opinion that it is in the public interest to retire a Government servant compulsorily. The order is passed on the subjective satisfaction of the Government.

(iii) Principles of natural justice have no place in the context of an order of compulsory retirement. This does not mean that judicial scrutiny is excluded altogether. While the High Court or the Court would not examine the matter as an appellate Court, they may interfere if they are satisfied that the order is passed (a) mala fide or (b) that it is based on no evidence or (c) that it is arbitrary- in the sense that no reasonable person would form the requisite opinion on the given material: in short, if it is found to be a perverse order.

(iv) The Government (or the Review Committee, as the case may be) shall have to consider the entire record of service before taking a decision in the matter- of course attaching more importance to record of and performance during the later years. The record to be so considered would naturally include the entries in the confidential records/character rolls, both favourable and adverse. If a Government servant is promoted to a higher post notwithstanding the adverse remarks, such remarks loose their sting, more so, if the promotion is based upon merit (selection) and not upon seniority.

(v) An order of compulsory retirement is not liable to be quashed by a Court merely on the showing that while passing it uncommunicated adverse remarks were also taken into consideration. That circumstance by itself cannot be a basis for interference".
Courtesy Live Law

Care for mental health

  
The Mental Healthcare Bill, 2016 was passed by Rajya Sabha last week, and is expected to be discussed in Lok Sabha during next session. The Bill repeals the existing Mental Health Act, 1987, which is vastly different in letter and spirit. The Act of 1987 had been widely criticised for proving to be inadequate to protect the rights of mentally ill persons. Here are certain things you need to know about the new Bill:

1. Mental Healthcare Bill seeks to decriminalise the Attempt to Commit Suicide.

The most important feature of this Bill is that a person attempting suicide shall be presumed, though rebuttable, to be suffering from severe stress (the words ‘mental illness’ in the old Bill substituted with ‘severe stress’) and hence, exempt from trial and punishment. The Bill also seeks to impose on the government a duty to rehabilitate such person to ensure that there is no recurrence of attempt to suicide.

2. Seeks to fulfil India’s international obligation pursuant to the Convention on Rights of Persons with Disabilities and its Optional Protocol

India signed and ratified the Convention on 1st October 2007. The Bill adopts a more nuanced understanding of “mental illness” than the Act of 1987. However the Bill varies from the social model of disability incorporated in the Convention. The social model of disability focuses on how disability hampers a person’s full and effective participation of the society. The Bill, on the other hand, adopts a narrow approach to see mental illness as hampering recognition of reality or ability to meet the ordinary demands of life and also as conditions associated with drug and alcohol abuse.

3. Seeks to empower persons suffering from mental-illness, marking a departure from the Act of 1987.

Whereas the Act of 1987 did not recognise the agency and capacity of a person suffering from mental illness, the Bill adopts a radically different approach empowering the individual to make decisions concerning her mental healthcare or treatment. This is in line with the objective of the Convention to uphold the inherent dignity of the persons with disabilities. The capacity to take such decisions is recognised if the individual can understand relevant information, appreciate foreseeable consequences of such decisions and also can communicate them. The Bill also lays down certain parameters for determination of mental illness, seeking to use nationally and internationally accepted medical standards, especially the standards adopted by World Health Organisation. The provision also seeks to preclude irrelevant factors in the determination of mental illness.

The Bill provides every person, except a minor, with a right to make an Advance Directive specifying the way the person wishes to be cared for and treated for a mental illness and also to appoint a nominated representative, who is entrusted with the task of protecting the interests of the person suffering from mental illness. It is mandatory for every medical officer and psychiatrist to provide treatment to an individual as per the Advance Directive except when the Mental Health Review Board finds that the directive can be altered on considerations like lack of free will, information or capacity; or illegality of the content; or circumstances differing from those anticipated by the person making the directive.

4. Adopts a rights-based approach, which is a first in the mental health law of India.

The Bill creates a rights-based framework for mentally ill persons. This is a remarkable difference from the Act of 1987. Whereas the Act of 1987 provided only general protections against indignant or cruel treatment, Chapter V of the Bill operates as a charter of rights for persons with mental illness consolidating and safeguarding the basic human rights of these individuals. The Bill guarantees every person the right to access mental health care and treatment from mental health services run or funded by government. This right is meant to ensure mental health services of affordable cost, of good quality, of sufficient quantity, are geographically accessible and are provided without discrimination.

The Bill also recognises the right to community living; right to live with dignity; protection from cruel, inhuman or degrading treatment; treatment equal to persons with physical illness; right to relevant information concerning treatment other rights and recourses; right to confidentiality; right to access their basic medical records; right to personal contacts and communication; right to legal aid; recourse against deficiencies in provision of care, treatment and services. Every insurer is bound to make provision for medical insurance for treatment of mental illness on the same basis as is available for treatment of physical illness.

5. Provisions for registration of institutions and regulation of the sector

The Bill provides for the creation of Central and State Mental Health Authorities in order to ensure registration and supervision of mental health establishments; to develop quality and service norms for these establishments; to ensure registration of psychologists, mental health nurses, psychiatric social workers; to train law enforcement officials and mental health professionals about implementation of the Bill; and to advise government on mental health related issues. Registration of mental health establishments is made mandatory by providing for stringent penalty for violation. The registration is contingent on the establishment complying with the regulations issued by relevant Authority.

The Bill also provides for the creation of Mental Health Review Boards that has adjudicatory powers over the various rights and protections guaranteed by the Bill. Further, an appeal is allowed to the High Court against the order of the Authority or the Board, while there is a bar on jurisdiction of civil courts to entertain any suit or proceeding in respect of any matter which the Authority or the Board is empowered to decide. These provisions have been critically viewed for creating dependency of mental health practitioners on the government.

6. The Bill allows only restricted use of Electro-convulsive therapy.

The Bill completely prohibits Electro-compulsive therapy (“ECT”) as a measure of emergency treatment. It also prohibits ECT without muscle relaxants and anaesthesia. ECT is completely prohibited for minors except with informed consent of the guardian and prior permission of the concerned Board.

7. Property Management

Unlike the Act of 1987, the Bill does not provide for management of property of mentally ill persons. This is a serious cause of concern as mentally ill persons could easily be exploited and their property taken away from them, leaving such individuals in a perpetual state of dependency. The series of rights recognised by the Bill do not account for property management of mentally ill persons. The Standing Committee report took note of this discrepancy and recommended that the central government implement necessary transitory schemes.

8. Responsibilities of certain other Agencies

The Bill imposes a duty on the police officer in the charge of a police station to take under protection any person found wandering at large within the limits of the police station; such person will be subject to examination by a medical officer and based on such examination will be either admitted to a mental health establishment or be taken to her residence or to an establishment for homeless persons. Further, a police officer in charge of a police station shall report to the Magistrate if he has reason to believe that a mentally ill person is being ill-treated or neglected. Upon this report, the Magistrate may pass an order to cause the person to be produced before him to be subsequently examined by a medical officer or a mental health professional or be provisionally admitted to a mental health establishment. The Bill also provides that whenever during a judicial process, a proof of mental illness is produced and the same is challenged, the court shall refer it to the concerned Board and the Board shall submit its opinion to the court.

9. Funds

The Bill guarantees a right of affordable, accessible and quality mental health care and treatment from mental health services run or funded by Central and State governments. The Bill also makes provision for a range of services to be provided by the appropriate government. However, the estimate of expenditure required to meet the obligations under the law is not available. It is also not clear how the funds will be allocated between the Central and the State governments. The Standing Committee report recommended allocation of funds to states noting that without such allocation, states facing financial constraints will not be able to implement the bill.

10. The Bill seeks to tackle stigma attached to mental illness

By addressing mental illness from a holistic perspective and by empowering mentally ill persons, the Bill seeks to remove the stigma attached to mental illness. It makes effort to secure equal treatment for persons with mental illness and those with physical illness. However, some critics believe that the Bill, especially the expansive definition of “mental illness”, will only hurt a large number of victims of even minor mental illnesses and their families, because of the wide prevalence of stigma, while not really tackling the issue of stigma.
Courtesy Live Law