CURRENT LEGAL

KNOWLEDGE
Sakshi Tomar
 Service Rules on prevention of sexual harassment at workplace
should not be given hyper technical interpretation: Supreme
Court
• Union of India vs Mudrika Singh
• SC- existence of transformative legislation such as Sexual Harassment of
Women at Workplace (Prevention, Prohibition, and Redressal) Act, 2013
(POSH Act) may not come to the aid of persons aggrieved of sexual
harassment if the appellate mechanisms turn the process into a
punishment.
• spirit of the right against sexual harassment is vested in all persons as a
part of their right to life and right to dignity under Article 21 of the
Constitution
• SC while dealing with case related to sodomy by senior constable in BSF
 Police cannot use their uniform as shield against unlawful
conduct: Gauhati High Court
● Amarjyoti Gogoi and Ors. vs The State of Assam and Ors
● Police tortured illegally detained a man in lockup and made him sign an
agreement transferring his property
● Court: mandate to obtain sanction under Section 197 of the Code of
Criminal Procedure (CrPC) for taking cognizance of offences against police
personnel, applies only if the alleged act is reasonably connected to the
discharge of official duty
● In case of an act of policeman or any other public servant not connected
with the official duty, there can be no question of sanction
 Delhi High Court notice to Centre on petitions seeking
recognition of lesbian, transgender marriage

● Zainab Patel v UOI and Ors & Nibedita Dutta v UOI and Ors
● Petitioner- The Union seeks to classify men and women into two
categories - "biological" and otherwise. Yet for the purposes of
marriage, there is no intelligible differentia between the Petitioner
and any other woman. The ability to procreate is not a condition of
or for marriage under any law. Infertile couples can marry, elderly
couples can marry, and couples who have decided not to have
children can marry.
 Same-sex marriages should be registered only under Special
Marriage Act, not Hindu Marriage Act: Plea in Delhi High
Court
● Intervention application by Sewa Nyay Utthan Foundation
● Hindu Marriage Act is derived from dharmic texts which allow
marriages only between a man and woman. Hence, registration of
same-sex marriages should be allowed only under secular laws like
Special Marriage Act
 Removal of LGBTQIA+ sensitisation action plan by NCERT due
to external pressure poses great danger to fabric of nation-
Madras HC
● Justice Anand Venkatesh- Sensitisation has to start from schools
and the home, and without family support, children belonging to this
Community will never be able to get support elsewhere.
● Court issued several directions with regard to welfare of the
LGBTQIA+ community, LGBTQIA+ sensitisation action plan was a
part of it
Supreme Court orders distribution of dry ration to sex workers
without insisting on ration cards

● Budhadev Karmaskar vs. State of West Bengal and ors

● Constitutional obligation on the State Governments and Union Territories to
provide basic amenities to the citizens of this country includes the
entitlement of sex workers to food
● Instead of ration card, data provided by NACO (National AIDS Control
Organization) and the DSLA (District Legal Service Authority) would be
sufficient to claim their share of dry ration
 Disclosure of victim's hideout to murderers does not make a
person part of unlawful assembly: Supreme Court

● Taijuddin v. State of Assam and Others

● Charged under Sections 148 (rioting, armed with deadly weapon), 149 (offence
committed by an unlawful assembly in prosecution of a common object) 302 (murder)
and 201 (causing disappearance of evidence of offence, or giving false information) of
the Indian Penal Code
● SC- The Court must guard against the possibility of convicting mere passive onlookers
who did not share the common object of the unlawful assembly. There must be
reasonable direct or indirect circumstances which lend assurance to the prosecution
case that they shared common object of the unlawful assembly
● Quite often, people gather at the scene of offence out of curiosity. They do not share
common object of the unlawful assembly. If a general allegation is made against large
number of people, Court has to be cautious.
Restricting 'Touch' Or 'Physical Contact' Only To 'Skin To Skin' Contact
Absurd : Supreme Court Reverses Bombay HC's POCSO Judgment

● Bombay HC acquitted the accused on the grounds that there was “no direct skin to skin
touch” to constitute an offence under Section 7 of POCSO Act
● Section 7- “Whoever,
● (i) with sexual intent touches the vagina, penis, anus or breast of the child or makes the
child touch the vagina, penis, anus or breast of such person or any other person, or
● (ii) does any other act + with sexual intent +which involves physical contact + without
penetration, is said to commit sexual assault”.
● SC- need to delve into the purposive interpretation of the provision. The first part of the
Section is completely independent from acts referred to in the second part of the Section. It
deals with acts of touching particular body parts of the child or when the child is made to
touch such body parts of the abuser or any other person, with sexual intent. The key
factors of first part of Section 7 are “touch” “with sexual intent” and “particular body
parts.”
Restricting 'Touch' Or 'Physical Contact' Only To 'Skin To Skin' Contact
Absurd : Supreme Court Reverses Bombay HC's POCSO Judgment

● Section 11 contains smaller sexual offences like sexual harassment where touch or
physical contact does not exist. For offences like penetrative sexual assault (Section 3)
aggravated penetrative assault (Section 5) All sexual offences, which are graver than sexual
harassment but short of penetrative sexual assault, where touch/physical contact of the
body of the child with sexual intent is involved, are all covered in Section 7 and termed
‘sexual assault’, punishable under Section 8 of the Act.
● S. 2 (i) provides that "sexual assault" has the same meaning as assigned to it in Section 7.
It is clear that an element of ‘physical contact/ touch’ is essential to constitute an offence
of ‘sexual assault’, which should simply mean coming in contact with the body of the child
with or without clothes, in any manner or through anything.
● If the interpretation of the High Court were to be accepted, several acts of sexual abuse
would be left out of the ambit of the Act.
 Dragging scarf, pulling hand not sexual assault, sexual
harassment under POCSO Act: Calcutta High Court

● Nurai Sk. @ Nurul Sk. v. State of West Bengal

● HC- even assuming that the accused committed the alleged acts of
dragging the scarf and pulling the hand of the victim and proposed
marriage, such acts do not come within the definition of either sexual
assault under Section 7 of POCSO or sexual harassment under Section
11 of POCSO
● Accused can be held liable only for offences under Section 354A (sexual
harassment) read with Section 506 (criminal intimidation) of the Indian
Penal Code (IPC)
 When should regular FIR and Zero FIR be registered? Delhi
High Court answers

● If any information relating to the commission of any cognizable offence is received by a

police station, it is duty bound to register the FIR
● If the crime does not occur within the jurisdiction of the said police station, then after
registration of the Zero FIR, the same has to be transferred to the concerned police
station having jurisdiction.
● “Difference between 'FIR' and 'Zero FIR' is that an FIR is registered where the incident
has occurred within the jurisdiction of a particular Police Station, and a zero FIR can
be lodged at any Police Station irrespective of where the incident has taken place”
● Court noted that a Zero FIR is more efficient and is meant to provide quick redressal
to the victim so that timely action can be taken after registration of the FIR
 Advocate Losing A Case After Arguing Is Not 'Deficiency Of
Service' For Filing Consumer Complaint: Supreme Court
● Nandlal Lohariya v. Jagdish Chand Purohit and others
● SC- In each and every case where a litigant has lost on merits and there is no
negligence on the part of the advocate, it cannot be said that there was any
deficiency in service by the advocate.
 Failure of insurer to inform policy holders about changes in
policy terms is deficiency in service: Supreme Court
● Jacob Punnen vs United India Insurance
● SC- “The Consumer Protection Act, 1986 states the definition of ‘deficiency’ in
service under Section 2(g) as “[A]ny fault, imperfection, shortcoming or inadequacy
in the quality, nature and manner of performance which is required to be
maintained by or under any law for the time being in force or has been undertaken
to be performed by a person in pursuance of a contract or otherwise in relation to
any service”. In order to demonstrate deficiency, it is not necessary that the same
emanates only from a law or a contract. The term “or otherwise” clearly provides for
circumstances where a certain level of service is expected from a provider”
 Failure of insurer to inform policy holders about changes in
policy terms is deficiency in service: Supreme Court
● SC- “It kept the Insured in the dark about the limitation at the time when
the renewal notice was issued, and what is more, the premium was
accepted. The Insurer had a duty to inform the appellants that a change
regarding the limitation on its liability was being introduced. This duty to
take the insured into confidence was breached. This was the deficiency in
service,"
People have right to know what they are consuming- Delhi High
Court
● Ram Gaua Raksha Dal v UOI and Ors
● Delhi HC- calls for complete disclosure of items used in the manufacturing
of food products, specifically whether they are plant-based, animal-based or
chemical-based
● food additive used primarily in potato chips and noodles are sourced from
animal fat
● Non-disclosure not only violation of The Food Safety and Standards Act
2006 but also violation of Article 21 and 25 of Constitution
 Supreme Court recommends establishment of Motor Vehicle
Appellate Tribunals citing pendency in High Courts
● Rasmita Biswal & Ors vs Divisional Manager, National Insurance
Company Ltd & Anr
● SC- “Various Benches of such an Appellate Tribunal could consist of
two Senior District Judges. To ensure access to justice and to avoid
pendency, it is also proper to consider setting up Benches of the
Appellate Tribunal in various regional cities, in addition to the
capital city of each State as may be indicated by the relevant High
Court. For this purpose, appropriate rules governing the procedure
of the Appellate Tribunal may also be framed
 Husband can also file case against wife under Protection of
Women from Domestic Violence Act: Jammu and Kashmir court
● Hiral P. Harsora And Ors vs Kusum Narottamdas Harsora And Ors, 2016
● “(q) “respondent” means any adult male person who is, or has been, in a domestic
relationship with the aggrieved person and against whom the aggrieved person has
sought any relief”
● SC- decided to remove “adult male” by applying doctrine of Severability to read
down the provision of “Adult male” and the rest of the Section was held valid and
constitutional.
● Court made very important observations regarding the safety of women which
includes the fact that a non- adult can participate or abet an act of domestic
violence against the aggrieved and hence the word “adult” is struck down.
 Husband can also file case against wife under Protection of
Women from Domestic Violence Act: Jammu and Kashmir court
● Court also recognised that violence can be perpetrated against a woman by other
women and this includes sexual violence. Thus, with the rest of the provision
intact, respondents can include anyone without any difference being made on the
basis of gender or age
● Mohammed Zakir vs Smt Shabana, 2017 Karnataka HC
● The High Court observed that if the said sub-section is read after deletion of the
expression ‘adult male’, it would appear that any aggrieved person, in terms of DV
Act, whether male or female, is entitled to invoke provisions of the Act. Having
stated thus, the High Court held that petitioner’s complaint could not have been
trashed merely on the ground that the Act does not contemplate provisions for men.
 Foreigners can file complaint under Domestic Violence Act:
Rajasthan High Court
● Robarto Nieddu v. State of Rajasthan
● HC- Domestic Violence Act extends protection to temporary residents who
are covered under the definition of “aggrieved person” under Section 2(a).
● Canadian citizens residing in India for last 25 years, wife filed a case for
maintenance under Section 12
● Court- Article 21 states that no person shall be deprived of his life or
personal liberty except according to a procedure established by law.
Therefore, looked at from that angle, a person aggrieved i.e. respondent No.2
is very much entitled to get protection of section 12 of the Act of 2005
Wife Making Serious Unproved Allegations of Criminal Conduct
Against Husband Constitutes 'Cruelty': Delhi High Court
Upholds Divorce Decree

● Neelam v. Jai Singh

● HC- The mere fact that she made serious allegations of criminal conduct
against the respondent and his parents – which she could not establish
before the Court, was sufficient to constitute acts of cruelty against the
respondent
 Compassionate Appointment Policy at the time of death
applicable, not subsequent one: Supreme Court
● State of Madhya Pradesh vs Ashish Awasthi
● There was no policy of granting compassionate appointment when
respondent’s father died in 2015, a subsequent policy was brought in 2016
● As per the settled preposition of law laid down by this Court for appointment
on compassionate ground, the policy prevalent at the time of death of the
deceased employee only is required to be considered and not the subsequent
policy
 Might of State should not be used against journalists or to
browbeat political opinion: Supreme Court
● Nupur Sharma vs State of West Bengal
● Division Bench SC- State force should never be used to either
browbeat a political opinion or the journalists suffer the
consequences of what is already in public domain
● Journalists were charged for offences under Section 153A (promoting
enmity between religious groups), 504 (intentional insult with intent
to provoke breach of peace) and 505 (statements conducing to public
mischief) of the Indian Penal Code.
 Ex-parte enhancement of sentence against statutory mandate;
accused should be heard first: Supreme Court
● Krishnan and Another v. State by the Deputy Superintendent of Police and Another
● Court was hearing an appeal challenging the ex-parte enhancement of sentence where
no legal representation was done
● In 2020, Parveen v. State of Haryana, SC held that where no legal representation was
made on behalf of the appellants, the High Court ought to have appointed an Amicus
Curiae
● Also relied on Govind Ramji Jadhav v. State of Maharashtra, SC held that the High
Court should have given the accused-appellants a reasonable opportunity of showing
cause.
● SC- Ex parte enhancement of sentence is against the statutory mandate of the law as
delineated in the conjoint reading of Section 401(1) and first proviso to Section 386 of
the Code of Criminal Procedure, 1973. These sections adumbrate an opportunity of
showing cause before enhancement of sentence in criminal revision
 Non-availability of emergency operation theatre, doctor's
foreign visit not medical negligence: Supreme Court

● Bombay Hospital and Medical Research Centre vs Asha Jaiswal

● SC- non-availability of an emergency operation theatre during the
period when surgeries were being performed on other patients is not
a valid ground to hold a hospital negligent in any manner
● Court held that a doctor cannot be expected to remain on the bed
side of the patient throughout his stay in the hospital
Thank You