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Hijab Ban in yet another State; Now challenged before the Maharashtra High Court.

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A new case has been brought before the Maharashtra High Court, Zainab Choudhary & Ors. v. Chembur Trombay Education Society’s NG Acharya and DK Marathe College & Ors. Where the students of the college were issued a notice cum direction, which read as the following:

“You shall follow the dress code of college of formal and decent dress which shall not reveal anyone’s religion such as no burqa, no nakab, no hijab, no cap, no badge, no stole etc. Only full of half shirt and normal trousers for boys and any Indian/ western non-revealing dress for girls on the college campus. Changing room available for girls.”

 

The students have challenged this after a few junior students were denied entry into the college due to the fact that they were wearing hijabs and did not comply with the prescribed uniform. The students stated that these instructions were illegal, arbitrary and unreasonable, and that the college, affiliated to Mumbai University and aided by the State of Maharashtra had no power and authority to issue directions giving out such restrictions and that the notice could not be sustained. The plea stated that the use of Naqab and Hijab are some of the fundamentals of the petitioner’s religious practices and beliefs, and that in a secular country, such as India, it would be their free will, and their right to life and religion, to choose to follow certain customs of their religion, even in the classroom. The prayers sought by them, are for the Court to declare that such notices are without the authority of law and is arbitrary, and that they are not binding on the petitioners.

The same situation had previously occurred in Udupi, Karnataka, where students of a Pre-University College were denied entry as they were hijabs which was in violation of the Uniform Policy. After which multiple protests erupted challenging this. To conclude this issue, the State Government set up a Committee to study this issue, and come up with a decision, as to whether the students can display their religion in public areas, after which they came up with an Order, that was communicated across all schools that students could not wear anything that could express what religion they follow. This was challenged in the Karnataka High Court, which upheld the order and then lead to an Appeal in the Division Bench of the Supreme Court, where they gave a Split Decision. It was then sent before a Larger Bench, where it is still pending. Once the verdict for this case is set, it could also be used to determine the issue in Maharashtra, which is quite similar, however, the question as to whether or not the people will fall behind it and choose to accept it, cannot be answered until the verdict is given.

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Written by – Gnaneswarran Beemarao

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Overcrowded and Under-Resourced: A Look at India’s Prison System in Need of Reform

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ABSTRACT

This article delves into the evolution of the Indian prison system, highlighting it’s colonial roots and it’s gradual shift towards rehabilitation. While despite aiming for reform, the current prison system has been grappled with issues like overcrowding, lengthy pre-trial detentions, and inadequate resources. The Model Prison Manual, while a step towards improvement, has not been fully implemented by the authorities, the lack of legal aid for underprivileged detainees further also undermines the system’s effectiveness.

 

INTRODUCTION

Before the 18th Century, Punishment only took place in a public forum, i.e., public execution, or mutilation, etc. It was mainly directed at the prisoner’s body, in order to strike fear into the minds of the public, who might have even the slightest of ideas to commit a felony. It was more of a theatrical expression, to show who or what was in the position of power, and the result of anyone who chose to disturb it. It would be fair to say that after the 18th Century, the reforms in the prison system and the course or form of punishment that were brought in, were not as expressive and harsh as it previously was. Mind you, that did not mean people were not executed or harsh sentences weren’t carried out, it just meant that there was now a more efficient system in place, one that not only gave power to the government in place, but also to the citizens, and gave them certain rights. The concept of Punishment has existed for a long time, it is just as Aristotle says, “Man is a Social Animal”. Man craves to be part of a society or group, and does not or cannot survive independently. In this sense, the worst thing that can happen to a man is to deprive him of the particular group or society that he wants to be a part of, and what the current prison system does is exactly that, take him out the society that is performing well and good, and put him in the one he deserves, the one which consists of the exiles, delinquents and criminals. The ones who choose to break the rules, making the outer society a harsher environment for the ones who follow the rules, and abide by the law. The Prison System worldwide tries to discipline these rule-breakers, in order to change society for the better, it’s aim is not only to deprive the man of his freedom, but also to reform him.

 

THE PRISON SYSTEM IN INDIA

The present Indian Prison System is one that has been formed from the British idea of dolling out punishments. The idea that supports the current system is that, it is not enough to have just strict or maybe even the best set of rules to reduce criminal behaviour, but it also necessary to have an even stricter set of punishments for the criminals, in order to dishearten them and reduce the attractiveness of the criminal life. The current framework for jail management and administration in India is the Prisons Act, 1894. There haven’t been many significant changes made to this Act. Even after this, though, the process of reviewing India’s jail issues persisted.

‘Reformation and rehabilitation’ of offenders were identified as the prison administrator’s goals for the first time in the history of prisons in the Indian Jail Committee 1919–20 report. Following independence, a number of commissions and committees created by the federal and state governments placed a strong emphasis on humanizing the circumstances within jails. It has long been acknowledged that the laws pertaining to prisons need to be thoroughly revised and unified. The Government of India Act 1935 further lowered the likelihood of a national prison policy being implemented systematically by shifting the matter of jails from the center list to the jurisdiction of provincial governments. As a result, state governments have their own set of regulations for maintaining and managing prisons on a daily basis, as well as for prescribing treatments. In 1951, the Indian government requested Dr. W.C. Reckless, a United Nations specialist on corrections, to do research on prison administration and make recommendations for policy changes. In his study “Jail Administration in India,” he argued in favor of turning prisons into rehabilitation facilities, and suggested updating out-of-date jail manuals. The All India Jail Manual Committee which was formed in 1957, made the Model Prison Manual (MPM) and presented it to the Government of India in 1960 for implementation, which is now the guiding principle for the present Indian prison system.

Despite the relatively low number of persons in prison as compared to many other countries in the world, there are some very common problems across prisons in India, and the situation is likely to be the same or worse in many developing countries. Overcrowding, prolonged detention of under-trial prisoners, unsatisfactory living conditions, lack of treatment programmes and allegations of indifferent and even inhuman approach of prison staff have repeatedly attracted the attention of the critics over the years. while Legal assistance is provided during trial, it is not, during the detainee’s remand court appearance, and for those in India who are unable to pay for legal representation. Given that the majority of inmates both those in lockup and those in prisons have not had their cases tried, the lack of the nation’s legal representation system for the poor is considerably reduced up until the moment of trial. When most of them require this kind of help, lawyers are not readily available. This hinders the basic right of any accused, who is supposed to have a fair representation, under such harsh laws.

 

CONCLUSION

Prisons are one of the oldest societal structure used for confinement of people who go against the norms of the society, in an attempt to reform them. The end objective of a prison is to be sent out in a better condition than they have been when they entered. The phenomenon of prisonization creates the area to confront with one’s self and with a feeling of guilt. In this era, prisons are considered as correction centres with the central theme of reintegration and rehabilitation.

Though various bodies have studied the problems of Indian prisons and laws have been enacted to improve jail conditions, it is undeniable that many issues plague our prisons. In many cases, prisoners emerge from jails as hardened criminals rather than reformed wrongdoers eager to rejoin society. Expert counselling programmes should strengthen the emphasis on the correctional aspect. The mentality of the prison staff must change. Prison administration must be disciplined and attentive to prisoners’ human rights. Prison reform is about more than just the buildings; it is about what happens inside them that needs to change. Aside from improving prisoner amenities, the focus must be on their human rights.

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Article written by – Gnaneswarran Beemarao

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The Supreme Court of India Paves Way for Dignified Livelihoods: Imposes Stringent Measures to Abolish Manual Scavenging Menace

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Case Title – Safai Karamchari Andolan Vs. Union of India & Ors.

Case Number – W.P. No. 17380 of 2017; 31345 of 2014 and W.P. (MD) No. 24243 of 2017

Dated on – 29th April,2024

Quorum – The Hon’ble Chief Justice and Justice J. Sathya Narayana Prasad

FACTS OF THE CASE

In the case of Safai Karamchari Andolan Vs. Union of India & Ors., the Appellants instituted a Writ Petition seeking for the directions against the Respondents to cease the practice of manual scavenging, take Criminal Legal actions against the Respondents in the cases of violations, compensate fully the family of the victims who have attained death due to the manual scavenging, use machines for cleaning the septic tanks, and rigorously implement the Prohibition of Employment as Manual Scavengers and their Rehabilitation Act, 2013. Even after assurances from the authorities and the prevailing of the laws prohibiting the manual scavenging, the practice continues due to the entrenched social norms, caste-based discrimination, and systematic failures. The Appellants, in the present case, asserted that the practice of manual scavenging is a staid violation of human rights, eternalizing the cycle of tyranny and discrimination faced by the individuals engaged in this hazardous profession.

CONTENTIONS OF THE APPELLANT

  1. The Appellant, through their counsel, in the said case contented for the extermination of manual scavenging and the rehabilitation of scavengers to more decorous job opportunities within Tamil Nadu.
  2. The Appellant, through their counsel, in the said case contented that even after the applicability of laws like the Prohibition of Employment as Manual Scavengers and their Rehabilitation Act, 2013, manual scavenging persists due to systematic failures and social discrimination.

CONTENTIONS OF THE RESPONDENT

  1. The Respondent, through their counsel, in the said case contented that they have taken all the requisite steps to prevent manual scavenging, inclusive of the machines for clearing the septic tanks and compensating for death.
  2. The Respondent, through their counsel, in the said case contented that the accidents and the deaths concerning the manual scavenging occurred due to the shortcoming of the private contractors and that they have taken all the requisite actions as per law.

LEGAL PROVISIONS

  1. Section 2(j) of the Employment of Manual Scavengers and Construction of Dry Latrines (Prohibition) Act, 1993 prescribes the Definition of the term “Manual Scavengers”
  2. Article 23 of the Constitution of India prescribes the Prohibition of human trafficking and forced labour, including begging and similar forms of forced labour
  3. Article 23 of the Constitution of India prescribes the Abolishment of Untouchability
  4. Article 21 of the Constitution of India prescribes the prescribes the Protection of Life and Personal Liberty

ISSUES

  1. The main issue of the case whirls around whether the constant and unending practice of the manual scavenging violates the human rights as well as fundamental rights of the people engaged in the conduction of the manual scavenging?
  2. Whether the preventive measures taken by the Respondents are decent to exterminate the manual scavenging and ensure the welfare of the people engaged in the conduction of the manual scavenging?
  3. Whether the added instructions from the court are mandatory to address the issues efficiently

COURT ANALYSIS AND JUDGMENT

The court in the case of Safai Karamchari Andolan Vs. Union of India & Ors., acknowledged the tenacious issue of manual scavenging and the impact of it on the fundamental rights as well as the human rights and dignity of the individuals involved in the job of manual scavenging. The court in this case observed the inadequate existing laws and measures to annihilate the manual scavenging efficaciously. The court, in this present case, stressed on the need for the multifarious varied approaches, inclusive of the legislative reforms, social awareness campaigns, and alternative opportunities for the purpose of a better livelihood, to tackle with the issue effectively. The court took into consideration the contentions of both the parties, i.e., the Appellants and the Respondents, and issued a series of guidelines and directions to the Respondent authorities, inclusive of:

  • Taking strict actions against those engaging in manual scavenging
  • Providing shielding equipment and mechanizing sewer cleaning
  • Ameliorating compensation for deaths and injuries concerning the manual scavenging
  • Framing schemes for benevolent appointments and rehabilitation of the manual scavengers
  • Assuring stringent enactment of the pertinent laws and enervating the workers about the legislative provisions and rehabilitation schemes

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Judgement Reviewed by – Sruti Sikha Maharana

Click Here to View Judgment

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Right to be Forgotten: An Indian Perspective

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Introduction  

Everyone would face insults and humiliations in life, But nobody wants to remember those. We all try to forget it and motivate ourselves to move forward, while the world never forgets it irrespective of our growth and achievement. Right to be Forgotten means the right to get one’s information removed from internet or any public platforms. This right was first established by European Union in 2014 and enforced in 2018 through the General Data Protection Regulation which provides the right to individuals to delete or erase their personal information. Till date there is no law in India to deal with the right to be forgotten specifically. 

Right to be Forgotten in India  

An attempt was made in India to bring the ‘right to be forgotten’. Ravi shankar prasad, ministry of Electronics and Information Technology, introduced The Personal Data Protection Bill to the Lok Sabha on 11th december 2019. The purpose of the Personal Data Protection Bill is to protect an individual’s privacy relating to their personal data. Under the Personal Data Protection Bill, Chapter 5 provides about Right of Data Principal and clause 20 mentions the Right to be Forgotten;  

Clause 20 (l) states that: “Data principal (the person to whom the data is related) shall have the right to restrict or prevent the continuing disclosure of his personal data by data fiduciary”. 
The users can delink, delete, or correct an individual’s personal information under this right but it is yet to be passed in the parliament. 

The right to be forgotten was first raised in India in the case of Dharamraj Bhanushankar Dave v. State of Gujarat & Ors (2015) before the Gujarat High Court. The petitioner was accused of criminal conspiracy, murder, and kidnapping. After he was acquitted by the Court, he requested that the respondent must be barred from publishing the non-reportable judgement on the internet, as it could be damaging to the petitioner’s personal and professional life- leading to defamation. However, the court did not recognize the existence of the ‘Right to be Forgotten’ in India.  

Supreme court in the case of Justice K.S. Puttaswamy (Retd.) and Anr. vs Union of India, held Right to Privacy as a fundamental right as it will be included in the Right to Life enshrined under Article 21 of the Constitution. The aim of Article 21 is that No person shall be deprived on his life or personal liberty expect according to a procedure established by law. Court observed that: “right of an individual to exercise control over his personal data and to be able to control his/her own life would also encompass his right to control his existence on the Internet.” 

In the case of Jorawar Singh Mundy vs. Union of India (W.P. (C) 3918/ 2020), Single Judge bench comprising Justice Pratibha M. Singh held that, on the one hand, there is petitioners’ right to privacy and on the other hand, the public’s right to information & the preservation of transparency in judicial records. The court prioritizing the petitioner’s right to privacy, ordered the respondents to delete access to the judgement from their websites.  

In Zulfiqar Ahman Khan v. M/S Quintillion Business Media Pvt. Ltd. And others, High Court of Delhi recognized the Right to be Forgotten and the right to be left alone as the integral part of an individual’s existence.  

There are certain challenges associated with the implementation of Right to be Forgotten. It would be a disadvantage for the journalists in providing information and news. This right clearly benefits the individual claiming it, while on the other side it hinders the right of freedom of expression of others who have expressed their opinion through various modes of publication. Thus, Right to be forgotten is a complex right. It has to decide between a person’s Privacy and others freedom of speech and expression. 

Conclusion  

The right to be forgotten is a subset of the right to privacy, which is a basic right under Article 21 of the Indian Constitution. However, whether the right to be forgotten is a basic right is ambiguous. The “right to be forgotten” being widely significant in present days is a developing right in India. Each one make mistakes remarking their character and everyone deserve the right to be forgotten of that remark once they are exonerated.  

 

“PRIME LEGAL is a full-service law firm that has won a National Award and has more than 20 years of experience in an array of sectors and practice areas. Prime legal fall into a category of best law firm, best lawyer, best family lawyer, best divorce lawyer, best divorce law firm, best criminal lawyer, best criminal law firm, best consumer lawyer, best civil lawyer.” 

Written by- K R Bhuvanashri 

 

References: 

  • https://www.legalserviceindia.com/legal/article-7112-right-to-be-forgotten-in-india.html 
  • https://timesofindia.indiatimes.com/readersblog/myblogpost/is-the-right-to-be-forgotten-a-fundamental-right-52529/ 
  • 2015 SCC OnLine Guj 2019, 
  • https://main.sci.gov.in/supremecourt/2012/35071/35071_2012_Judgement_26-Sep-2018.pdf  
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The Fundamental Right to Life Includes the ‘Right to Identity,’ So Changing Your Last Name to Avoid Caste Discrimination Is Legal, Says the Delhi High Court

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Title: SADANAND AND ANR. v. CENTRAL BOARD OF SECONDARY EDUCATION AND ORS.
Decided on: 19th May, 2023

W.P.(C) 10561/2018

CORAM: HON’BLE MS. JUSTICE MINI PUSHKARNA

Introduction

The High Court of Delhi has ruled that a person may legally alter his or her surname in order to avoid being associated with a caste “that could pose a cause of prejudice” to that person, citing Article 21 of the Indian Constitution as its authority. The adopted caste/surname would not be eligible for any reservations or other privileges due to the name change, the court said.

Article 21 of India’s constitution guarantees everyone the right to life, which includes the right to one’s own identity. There is no doubt that the Right to Life encompasses the Right to Live with Dignity, which includes freedom from casteism and other forms of oppression. Thus, Justice Mini Pushkarna ruled on May 19 that a person has the right to alter his or her surname if doing so will prevent him or her from being associated with a cast that might lead to bias.

Facts of the Case

In this case, the Central Board of Secondary Education (CBSE) had refused to alter the surname of the applicants’ father on their 10th and 12th grade board certificates, and the applicants’ two brothers had filed a petition in court disputing this decision. The CBSE Certificates they received after completing Grades 10 and 12 listed their father’s name as “Lakshman Mochi.” They said that their father, who endured daily caste discrimination, changed his last name from “Mochi” to “Nayak” and placed a notice in the press to that effect.

Courts Analysis and Decision

The court was informed that his name had been officially changed from “Lakshman Mochi” to “Lakshman Nayak” by publishing in the Gazette of India. However, the CBSE’s lawyer argued that the boys’ surname change would also result in a caste change that may be exploited. It was also argued that the boys’ request to change their father’s name was outside the scope of the required paperwork for the school. Giving the boys relief, the court said that CBSE’s refusal to make the necessary adjustment to their certificates was wholly illogical. Those who file petitions have every right to an identity that offers them an honourable and acceptable identity in society, it should be stressed. The petitioners are undoubtedly entitled to a change of identity that offers them legitimacy in the social structure if they have experienced social bias as a result of their surname and have incurred any disadvantage as a result, the court said. It was noticed that the father had previously changed his last name by publishing a notice in the Gazette, and the new last name was correctly represented in a few official papers published by government organisations.

 Therefore, there is no rationale for not permitting identical adjustments to the petitioner brothers’ 10th and 12th certificates to reflect their father’s new name. However, it was made clear that for students to benefit from any reservations or other benefits available to the altered caste or surname, the change in the surname on their CBSE certificates must only apply to their father’s name and not their caste.

Judgment- click here to review the judgment

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Written by- Anushka Satwani

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