Important Legal Updates of 2022 - Legal Bites Year Update

Legal Bites brings you a roundup of Important Legal Updates of 2022, which played a significant role.

Important Legal Updates of 2022 - Legal Bites Year Update

I. SC appoints a 5-member Panel headed by ex-judge Indu Malhotra to probe the PM security breach

On January 12, 2022, the Supreme Court appointed an inquiry committee headed by former judge Justice Indu Malhotra to probe Prime Minister Narendra Modi's security breach in Punjab on January 5. While setting up the inquiry committee, the bench headed by CJI and including Justices Surya Kant & Hima Kohli noted that this matter cannot be left to one-sided enquiries.

The bench emphasised that the matter must be looked into by a judicially trained mind in a bid to submit a comprehensive report for the court's consideration. Before that, SC had also ordered the Punjab and Haryana HC Registrar General to seize and secure all records related to the PM's security on visit and keep them in safe custody. Now, all the records will be handed over to Justice Indu Malhotra.[1]

II. Supreme Court's verdict on the inheritance of daughters

In a significant verdict, Supreme Court recently declared that; daughters will be entitled to inherit the properties of the father. The apex court pronounced that, daughters of a male Hindu, dying intestate, will be entitled to inherit the self-acquired and other properties obtained in the partition by the father. Daughters will also get preference over other collateral members in the family. As per the court, if a property of a male Hindu dying intestate (without a will) is a self-acquired property or it has been obtained in the partition of a coparcenary or a family property, it would devolve by inheritance and not by survivorship.

The daughter would be entitled to inherit such property. The right of a widow or daughter to inherit the self-acquired property or share received in the partition of a coparcenary property of a Hindu male dying intestate is well recognized under old customary Hindu Law as well as by several judicial pronouncements.[2]

III. MHA releases advisory to facilitate transgender persons in prison

On January 10, 2022, the Ministry of home affairs (MHA) released an advisory on transgender persons in prisons. Ministry has asked prison authorities to make arrangements inside the jails in order to recognise the identity of transgender inmates and not to discriminate against their rights. It has asked prison chiefs and state governments to create separate wards or enclosures and earmark separate shower & toilet facilities for transwomen and transmen in order to preserve their right to privacy and dignity of the inmates.

While making provision for a separate ward or enclosure for transgender prisoners, authorities have been advised to take due care so that, it may not result in complete isolation or propagate social stigma among transgender prisoners. Ministry advises respecting the self-identity of transgender persons at all times while conducting admission procedures, frisking, clothing, medical examination, treatment & care inside prisons and requisitioning of a police escort. Thus, the ministry asked prisons to facilitate the process of acquiring the transgender identity certificate. It further asked 'transgender' to include as a category in the prison register and electronic records.

The prison authorities have also been asked to provide health care facilities and arrange meetings with family & legal advisors at par with other prisoners.[3]

IV. Government starts process to amend IPC, CrPC

Suggestions have been asked by the Ministry of Home Affairs from the Chief Ministers, Governors, Union Territory Administrators, Lieutenant Governors, Chief Justices of the various High Courts, Chief Justice of India, Bar Council of the various States, Bar Council of India, law institutes, various universities, and all MPs regarding the comprehensive amendments that are to be made in criminal laws. In its 146th report, the department-related Parliamentary Standing Committee on Home Affairs recommended a comprehensive review of the country's criminal justice system.

Previously, in its 111th and 128th reports, the Parliamentary Standing Committee emphasised the need to rationalize and reform the country's criminal law by introducing comprehensive legislation in the Parliament instead of bringing about irregular amendments in the respective acts. The government has initiated the process of amendment to laws such as the Code of Criminal Procedure, the Indian Penal Code, and the Indian Evidence Act with the aim of making comprehensive changes in the criminal laws of the country.[4]

V. Criminal Procedure Identification Act, 2022

The Criminal Procedure (Identification) Act, 2022 repeals the Identification of Prisoners Act, of 1920, whose scope was limited to collecting finger impressions, footprint impressions and photographs of convicted persons and certain categories of arrested and non-convicted persons based on the order from the Magistrate. The new law enables police and central investigating agencies to collect, store, and analyse physical and biological samples like retina and iris scans of arrested individuals. The rules do not mention the procedure for convicted persons. Measurements of individuals detained under preventive detention laws should not be taken unless they are associated with a serious offence or ordered by a court.

Measurements here include finger impressions, palm-print, foot-print, photographs, iris and retina scan, physical, and biological samples and their analysis, and behavioural attributes including signatures, handwriting or any other examination. They are mentioned in Section 53 and Section 53A of the Code of Criminal Procedure, 1974. The rules allow the storing and preservation of the measurements in a secured and encrypted format as per the Standard Operating Procedure by the NCRB from "time to time".[5]

VI. Supreme Court recognizes sex work as a profession

India's Supreme Court recently observed that "sex work is a profession" like any other, and sex workers should not be harassed by the police. "Sex workers are entitled to equal protection of the law. Criminal law must apply equally in all cases, on the basis of 'age' and 'consent.' When it is clear that the sex worker is an adult and is participating with consent, the police must refrain from interfering or taking any criminal action," the court ruled.

The court ruling is a landmark in a sense, that it upholds the dignity of sex workers. It will enable sex workers to avail themselves of the same benefits and facilities as any other citizen. It should be pointed out that sex work or prostitution is not illegal in India. However, trafficking for sexual exploitation is an offence under Indian law. Sex work as an organized trade which involves pimping, soliciting, exploitation, and renting out of property for sex work are all punishable as per the Indian Penal Code (IPC) and the Immoral Trafficking Prevention Act (ITPA).[6]

VII. 'Right To Be Forgotten': Supreme Court Directs Registry To Examine A Litigant's Request To Erase Names/ Address From Order

Recently, the Supreme Court recognised the 'right to be forgotten' as part of the 'right to privacy' and ordered to development of a mechanism for removing the personal details of litigants involved in matrimonial litigation. The bench was considering a plea of a woman which noted that; her personal information should either be deleted or masked from a judgement of her case because the judgement is easily accessible to the public. Though the judgement masked the women's identity, but revealed the identity of her husband, though acquaintances were able to link her with the case.

This led to an immense loss for her, through social stigma. She maintained that such kind of public visibility was against her right to privacy, which also includes the right to be forgotten. In India, there is no legal standard for the right to be forgotten currently. However, if the recent judgement of the Supreme Court is implemented, citizens would no longer require to file a case making requests to remove information from search engines and other public platforms.[7]

VIII. Kihoto Hollohon Judgement: Disqualification Proceedings Against Maharashtra MLAs

On June 27, 2022, the supreme court asked 16 rebel Shiv Sena MLAs to respond to the disqualification notice issued by Deputy Speaker, until July 12. Earlier, the deputy speaker had given 48 hours to MLAs to respond. In this crisis, references have been made to the landmark 1992 judgment in 'Kihoto Hollohan vs. Zachillhu And Others' (1992 SCR (1) 686, 1992 SCC Supl. (2) 651). In this case, Supreme Court upheld sweeping discretion available to the Speaker in deciding disqualification of MLAs cases.

The law dealing with the powers of the Speaker and disqualification of lawmakers in deciding such matters became part of the constitution in 1985 with the adoption of the Tenth Schedule or 'anti-defection law'. In the Kihoto Hollohan case, the constitutional challenge to anti-defection law was settled. The main question before the Supreme Court was whether the powerful role provided to Speaker violated the doctrine of basic structure.[8]

IX. Supreme Court starts live streaming Constitution bench hearings

Swapnil Tripathi's judgment of September 2018 upheld the plea demanding live streaming of the Supreme Court proceedings. In this judgement, the apex court held that live streaming provides the opportunity for the general public to witness the live proceedings, which is otherwise difficult due to logistical challenges and infrastructural restrictions. More than 8 lakh people viewed the proceedings before the three Constitution Benches.

The live streaming was closely monitored by the technical support teams of the court to ensure smooth proceedings. This initiative aims to bring the judiciary close to the citizens living across India, especially the important hearings having constitutional significance. The initiative was a result of the meeting of the Supreme Court Judges on September 20, 2022.[9]

X. Marital Rape Criminalisation: Supreme Court seeks government response in an appeal against Delhi High Court's split verdict

The high court's verdict had come on PILs filed by NGOs RIT Foundation, All India Democratic Women's Association, and a man and woman seeking striking down of the exception granted to husbands under the Indian rape law. The petitioners before the high court had challenged the constitutionality of the marital rape exception under section 375 IPC (rape) on the ground that it discriminated against married women who are sexually assaulted by their husbands.

The high court had on May 11 delivered a split verdict, with one of the judges favouring striking down the exception in the law that grants protection to husbands from being prosecuted for non-consensual sexual intercourse with their wives and the other refusing to hold it unconstitutional. However, both the judges concurred with each other in granting the certificate of leave to appeal to the Supreme Court in the matter as it involves substantial questions of law that require a decision from the apex court.[10]

XI. Supreme Court takes up Citizenship (Amendment) Act challenge

The Citizenship Amendment Act, 2019 seeks to grant citizenship to a class of migrants belonging to Hindu, Sikh, Buddhist, Jain, Parsi or Christian communities from Afghanistan, Bangladesh or Pakistan. The Act was passed on December 12, 2019, and was notified on January 10, 2020. While the government claimed the amendment was sympathetic and inclusionary, critics said it was unconstitutional and anti-Muslim.

The law provoked widespread protests in the country. In the CAA challenge, the petitioners have asked the Court to look into whether the special treatment given to so-called "persecuted minorities" from three Muslim-majority neighbouring countries only is a reasonable classification under Article 14 for granting citizenship and whether the state is discriminating against Muslims by excluding them.[11]

XII. All women entitled to safe & legal abortion, the distinction between married & unmarried women unconstitutional: Supreme Court

The Supreme Court has held that all women, irrespective of their marital status, are entitled to safe and legal abortion till 24 weeks of pregnancy under the Medical Termination of Pregnancy (MTP) Act. In X v. The Principal Secretary, Health and Family Welfare Department, Govt. of NCT of Delhi & Anr. [Civil Appeal No 5802 of 2022 (Arising out of SLP (C) No 12612 of 2022)], the court also said that the meaning of "rape" in the ambit of this Act could also be held to include marital rape.

The top court said the distinction between married and unmarried women under the abortion laws is "artificial and constitutionally unsustainable" and perpetuates the stereotype that only married women are sexually active. The apex court also observed that reproductive right is part of individual autonomy and because the foetus relies on the woman's body to sustain, "the decision to terminate is firmly rooted in their right of bodily autonomy."[12]

XIII. Supreme Court agrees to hear plea challenging the first amendment to the Constitution

The Supreme Court of India agreed to examine the plea challenging the expansion of restrictions to the right to freedom of speech and expression that was put in place by the First Amendment to the Indian Constitution. The petitioner challenged that this amendment damages the basic structure doctrine. The Bill providing the first amendment to the Indian Constitution was introduced by former Prime Minister Jawaharlal Nehru on May 10, 1951, and enacted by the Indian Parliament on June 18, 1951.

The Constitution (First Amendment) Act, 1951 makes several changes to the Fundamental Rights provisions provided by the Indian Constitution. It provides the means to restrict the freedom of speech and expression, validates the prohibition of the zamindari system and clarifies that the right to equality does not prevent the government from providing special consideration for weaker sections of society.[13]

XIV. Ban of Use of 'Single-use plastic'

A gazette notification was issued by Ministry for Environment, Forest and Climate Change in 2021, and announced the ban. It has now defined a list of items, that will be banned from July 2022. As per the 2021 report of the Minderoo Foundation of Australia, single-use plastics account for one-third of all plastic produced worldwide, with 98% being manufactured from fossil fuels. It also accounts for the majority of plastic discarded worldwide in 2019 (130 million metric tonnes). If this trajectory is followed, single-use plastic could make up 5-10 % of greenhouse gas emissions by 2050.[14]

XV. Supreme Court bans two-finger test; based on a patriarchal mindset that sexually active women can't be raped

The Supreme Court of India recently called for the ban on the two-finger test in rape cases. It had provided similar judgement nearly a decade ago. A bench having Justice DY Chandrachud and Justice Hima Kohli recently made observations while overturning the acquittal of a rape accused in the Telangana High Court. It made several key observations during the judgement. It held that the practice of the two-finger test in rape cases was "patriarchal" and "sexist" and called for its removal from the medical education syllabus. Anyone who conducts a two-finger test would be guilty of misconduct.

The practice re-traumatizes and re-victimizes women who were victims of rape. It is based on the misleading assumption that sexually active women cannot be raped. Evidence of the victim's sexual history is not related to the rape case.[15]

XVI. SC's split verdict on Karnataka's Hijab Ban

The Supreme Court delivered a split verdict on pleas contesting the Karnataka High Court's refusal to lift the hijab ban in educational institutions in Karnataka. The Karnataka HC held that wearing a hijab is not part of the essential religious practice in the Islamic faith. The SC bench consisting of Justice Hemant Gupta and Justice Sudhanshu Dhulia heard pleas challenging this verdict. While Justice Hemant Gupta dismissed appeals challenging the HC judgement, Justice Sudhanshu Dhulia held that there shall be no restrictions on wearing hijab anywhere in schools or colleges in Karnataka.

Justice Hemant Gupta held that wearing a hijab is not an essential religious practice, unlike the Kirpan worn by the Sikhs. He also held that the Karnataka government's hijab ban promotes the environment favouring equality. He adjudged that permitting girls to wear hijab is an antithesis to secularism. Justice Dhulia countered the rulings of the Karnataka High Court by stating that the hijab ban is an invasion of privacy and dignity and that it goes against rights guaranteed under Article 19(1)(a) – right to freedom of speech and expression – and Article 21 – right to protection of life and personal liberty.[16]

XVII. Prevention of Cruelty to Animals Act. The draft proposes 61 changes: 3-year jail for 'gruesome cruelty', and 5 for killing

A draft Prevention of Cruelty to Animals (Amendment) Bill, 2022 was released recently by the Union Ministry of Fisheries, Animal Husbandry, and Dairying for public comments. It proposes to overhaul the Prevention of Cruelty to Animals Act, of 1960. The Bill proposes to include bestiality as a crime under the new category of "gruesome cruelty". The subsection "gruesome cruelty" includes any act involving animals that can cause extreme pain and suffering and likely leave the animal with a life-long disability.

Offences under this subsection can result in fines from Rs.50,000 to Rs.75,000 or the cost of the animal, whichever is more, or one-year imprisonment that can be extended up to 3 years or both. The killing of an animal can result in a maximum punishment of five years of imprisonment. For this, a new clause Section 11(B) has been added by this bill. The draft bill also proposes the inclusion of a new section providing five freedoms for animals.[17]

XVIII. Right to freedom of religion does not include the fundamental right to convert: Union Govt to SC

On November 14, the Supreme Court observed that the fraudulent religious conversions affect the country's security, freedom of religion and conscience of citizens. It had asked the Central Government to step in and clarify what it intends to do to address the compulsory or deceitful religious conversions. This came after a plea was filed at the Supreme Court against fraudulent conversion and religious conversion through intimidation, deception, threat and luring through gifts and monetary benefits.

This plea held that such conversions go against Articles 14, 21 and 25 of the Indian Constitution. It claimed that if such conversions remain unchecked, Hindus will become minorities in India. It highlighted various instances of organized, systematic and sophisticated means to fraudulently convert the religions of vulnerable citizens. The Ministry of Home Affairs told the Supreme Court that the right to religion does not include the right to convert other people to a specific religion, especially through fraud, deception, coercion, allurement and other methods.[18]

XIX. SC upholds a 10 per cent quota for economically weaker sections by a 3:2 majority

The EWS Quota was introduced by the Indian Government to provide reservations in jobs and higher education to the economically weaker sections of society. The 10 per cent reservation is applicable for people who are not covered under the existing 50 per cent reservations for the scheduled castes, the scheduled tribes and the socially and economically backward classes (SEBCs). A 10% quota was created under the Indian Constitution's 124th Amendment Bill.

The Bill enables states to make limited reservations for direct employment and higher education based on economic criteria while not altering the other quotas provided for SC, ST and OBC communities. This amendment bill took the form of the 103rd Constitutional Amendment Act, which was enacted on February 12, 2019. With the 3:2 split verdict, the Supreme Court recently upheld the 10% quota for people belonging to economically weaker sections (EWS) in admissions and government jobs.[19]

XX. National Judicial Commission Bill introduced in Rajya Sabha

The National Judicial Commission Bill is a private member Bill that proposes major reforms in the Indian Judiciary. The 2022 Bill proposes the regulation of procedures that are to be followed by the National Judicial Commission for recommending the appointment of the Chief Justice of India (CJI) and other judges of the Supreme Court as well as the Chief Justice and other judges of the High Courts.

The Bill requires the Parliament to present an address to the President of India in relation to the proceedings for the removal of a judge and for matters connected therewith or incidental thereto. The Bill aims to regulate the judges' transfers. It proposes judicial standards to ensure their accountability. It also establishes a credible and expedient mechanism for investigating individual complaints regarding misbehaviour or incapacity of a judge of the Supreme Court or a High Court and regulating the procedures for such investigations.[20]

References

[1] January 2022, SC appoints a 5-member panel headed by ex-judge Indu Malhotra to probe PM security breach, Express News Service

[2] January 2022, Supreme Court's verdict on inheritance of daughters, Deccan Herald

[3] January 2022, MHA Releases Advisory To Facilitate Transgender Persons In Prison, The Logical Indian

[4] March 2022, Government starts the process to amend IPC, CrPC, The Hindu

[5] April 2022, Explainer: All you need to know about the Criminal Procedure (Identification) Bill, 2022, Times of India

[6] May 2022, India's Supreme Court Recognizes Sex Work as a Profession, The Hindu

[7] July 2022, Right to be forgotten: What is it? How has the SC expanded it?, Firstpost

[8] August 2022, Disqualification Proceedings Against Maharashtra MLAs, Supreme Court Observer

[9] September 2022, In a first, Supreme Court live-streams Constitution Bench proceedings, The Hindu

[10] September 2022, Marital Rape Criminalisation: SC Says It Will Hear Pleas Challenging HC's Split Verdict in 2023, The Wire

[11] September 2022, Supreme Court takes up Citizenship (Amendment) Act challenge: where does the case stand?, Indian Express

[12] September 2022, Women, Irrespective of Marital Status, Entitled to Safe and Legal Abortions: SC, The Wire

[13] October 2022, Supreme Court agrees to hear plea challenging first amendment to the Constitution, The Scroll

[14] October 2022, Three Months On, India's Single-Use Plastic Ban A Dud, India Spend

[15] October 2022, Supreme Court Bans Two-Finger Test; Says It's Based On Patriarchal Mindset That Sexually Active Women Can't Be Raped, LiveLaw

[16] October 2022, Karnataka Hijab Ban: SC delivers split verdict, says there's divergence of opinion, Livemint

[17] November 2022, Prevention of Cruelty to Animal Act | Draft proposes 61 changes: 3-year jail for 'gruesome cruelty', 5 for killing, The Hindu

[18] November 2022, No fundamental right to convert, MHA tells Supreme Court, Deccan Herald

[19] November 2022, SC upholds 10 per cent quota for economically weaker sections by 3:2 majority, TribuneIndia

[20] December 2022, Rahul Garg, National Judicial Commission Bill Introduced In Rajya Sabha, Indian Express

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