As the year 2021 comes to an end, LiveLaw brings you the 35 Significant Judgments & Orders pronounced by Madras High Court.
1. Right To Default Bail Not Extinguished With ‘Simultaneous’ Filing Of Chargesheet: Madras High Court [ K. Muthuirul v. The Inspector Of Police]
In a pertinent ruling, the Madurai Bench of Madras High Court delved deep into the statutory provisions and precedents that determine the four corners of default bail under Section 167(2) of CrPC and Section 36(A)(4) of NDPS Act.
Justice K. Murali Shankar has held that subsequent or even simultaneous filing of the charge sheet does not disentitle an accused from claiming default bail under CrPC.
The Bench observed that there is a misconception that in cases where the bail petition under Section 167(2) Cr.P.C and the charge sheet are being filed on the same day, then the time at which, bail petition or the charge sheet is filed, is the deciding factor and that if the charge sheet is filed earlier to the bail petition, then the accused is not entitled to get the statutory bail or in case, if the bail petition is filed before laying of charge sheet, then the bail application has to be allowed.
It was also made clear that the investigating agency has to file the charge sheet “before” the expiry of 60 days, 90 days (mentioned in CrPC) or 180 days (mentioned in NDPS Act) as the case may be, if the detention is required beyond the period of 60 or 90 or 180 days.
2. ‘Reservation Based On Caste Alone’: Madras High Court Quashes 10.5% Internal Reservation To Vanniyar Community Under Most Backward Class Category [V.V.Saminathan vs Government of Tamil Nadu]
The Madras High Court quashed the Tamil Nadu law providing internal reservation of 10.5 % to the Vanniyar Community under the category Most Backward Classes.
The court observed that Tamil Nadu Special Reservation of seats in educational Institutions including Private Educational Institutions and appointments or posts in the services under the State within the Reservation for the Most Backward Classes and Denotified Communities Act, 2021, is ultra vires the constitution.
The bench comprising Justices M. Duraiswamy and K. Murali Shankar also said that caste alone cannot be criteria to make reservation. It was also held that, in view of Article 31B and 102nd Constitutional amendment, the state legislature lacked the competence to make such a law.
The court observed that the Act had been passed by the State without any quantifiable data on population, socio-educational status and representation of the backward classes in the services. The sub-classification done solely based on population data, in the absence of any objective criteria, is illegal in the eye of law and in violation of the Constitution of India, the bench added
3. UAPA – Sessions Court’s Order Denying Bail Can Be Challenged Only By Appeal Under Section 21 NIA Act Before Division Bench: Madras High Court [Jaffar Sathiq @ Babu v. State]
A 3-judge bench comprising Justices P N Prakash, V Sivagnam, RN Manjula answered the reference made to it as follows: “An order passed by a Court of Session dismissing a bail application in a case involving offence(s) under the Unlawful Activities (Prevention) Act,1967 must be challenged only by way of an appeal under Section 21 of the National Investigation Agency Act, 2008. Consequently, such an appeal would lie only before a Division Bench vide Section 21(2) of the National Investigation Agency Act, 2008.”
Applications under Section 439 or 397 of the Criminal Procedure Code are not maintainable against the rejection of bail by the Sessions Court in a UAPA case, the Court clarified.
Also Read: Treating Ordinary Country Bomb Cases As Terrorist Offences Will Defeat Purpose Of NIA Act: Madras High Court
In a significant judgment pertaining to breach of contract, the Madras High Court ventured into when a party aggrieved is entitled to compensatory damages and under what circumstances the Court may grant restitutionary damages by way of an account of profits.
Compensatory damages are awarded to redress the loss suffered by an aggrieved party. Whereas, restitutionary damages are more in the nature of directing the Defendants to disgorge the benefit accrued in his favour due to unjust enrichment at the expense of the Plaintiff.
Justice N. Anand Venkatesh has made it clear that compensatory damages for breach of contract is awarded where the damages were indentifiable in the normal way.
It was added that Compensatory damages normally present themselves with difficulties associated in computing a reliable assessment of the loss caused to the party. It is in such “exceptional circumstances” that warrant a deviation from the general principle and seek for an account of profits.
5. ‘Rummy & Poker Are Games Of Skills’: Madras High Court While Striking Down Online Gaming Ban [Junglee Games India Private Limited v. State of Tamil Nadu]
The Court struck down the Tamil Nadu Gaming and Police Laws (Amendment) Act, 2021 which imposes a ban on playing of games such as rummy and poker on cyberspace with stakes. Section 11 of the impugned legislation also banned games of ‘mere skill’ if such games are played for wager, bet, money or other stake.
A Bench comprising Former Chief Justice Sanjib Banerjee and Justice Senthikumar Ramamoorthy was adjudicating upon a batch of petitions filed by gaming companies who offer access to card games like rummy and also poker on virtual platforms.
The Court observed that betting in its original sense cannot be divorced from gambling since the risk-taking element in gambling is betting. Furthermore, it was also opined that there lies no distinction between chance and skill or the preponderance of either in an activity which may be seen and understood to amount to gambling.
The Single Judge Bench of Justice N. Anand Venkatesh accordingly held:
“There is no doubt true that an owner need not necessarily join a copyright society. The first proviso to Section 33 makes it clear that the right of an owner to issue licenses, in his individual capacity, remains unimpacted, subject to the rider that such a right must be consistent with his obligations as a member of any copyright society. However, once the grant of license moves from the owner in his individual capacity, and transcends into the realm of a business, Section 33(1) and/or the second proviso applies. The legislative intent is manifestly clear that the business of licensing must be routed only through a copyright society.”
7. ‘Date Of Repudiation Of Claim The Cordial Knot To Determine Limitation, Mere Requests For Reconsideration Won’t Grant A Fresh Lease Of Limitation’: Madras High Court [M/s. Bharti AXA General Insurance Co.Ltd v. M/s. Shriram EPC Ltd. & Ors.]
Once a claim has been expressly rejected by the opposite party, further requests to reconsider the same by the other party will not stop the running of limitation, the Madras High Court has held while passing a summary judgement dismissing the money suit filed by Shriram EPC Ltd.
While dismissing the suit, a single-judge Bench of Justice G. Jayachandran underlined that, when even after repeated correspondence, the defendant has not reconsidered the stand regarding repudiation of claim, the said correspondence won’t grant a fresh lease of limitation for filing the suit.
The court noted that on a policy of insurance under Section 44 (b), the limitation period of three years will be counted from the “date of the occurrence causing the loss, or where the claim on the policy is denied either partly or wholly, on the date of such denial.”
8. ‘Many Things Claimed To Be Discovered & Equated With Scientific Objective Were Said Here Centuries Ago In Spiritual Sphere’: Madras HC Stresses Need To Conserve Cultural Heritage [Suo Moto v. Archaeological Survey of India & Ors.]
While issuing a set of directions for the preservation of ancient temples and monuments in Tamil Nadu, a division bench comprising Justices R Mahadevan and PD Audikesavalu spoke eloquently about the richness of the cultural heritage of Tamil Nadu and the need to pass it on to the future generation with all its grandeur preserved. “The younger generation hyping upon science and technological development needs to understand that many things claimed to be discovered and equated with scientific objective were said and laid down here before centuries in spiritual sphere”, it observed in the prelude of the 224-page order.
“The intelligence, knowledge and skill of the people of this land have been far superior and precocious even in fields that science is yet to find answer.In proof, not only have the primogenitors of this land left behind theories beyond human comprehension, but also astonishing and illuminating monuments and scriptures. The object of such creation was not just a personal achievement, but a conscious effort to leave a historical imprint for future generations”, the bench added.
The Court directed that the Central Government shall implement the Ancient Monuments Act in letter and spirit, by declaring all religious structures more than 100 years old including temples, temples’ tanks, mutts, temple chariots, jewels, art, artefacts, and sacred groves etc., including private denomination temples, as ‘national monuments’ with immediate effect.
Also Read: ‘Temple Lands Shall Always Remain With Temples; Public Purpose Theory Shall Not Be Invoked Over Temple Lands’: Madras High Court
9. ‘Medical Practitioners Must Be Protected From Onslaught Of Frivolous Complaints’: Madras High Court Issues Guidelines For National Medical Council [Dr. P. Basumani v. Tamil Nadu Medical Council]
The Court quashed an order dated May 4, 2021 of the Tamil Nadu Medical Council (TNMC) suspending a gastroenterologist by observing that principles of natural justice were not given credence to. The Court also laid down exhaustive guidelines that are to be included in the new Regulations that are to be framed under the National Medical Council (NMC) Act, 2019 for effective handling of complaints against medical practitioners.
Justice R Mahadevan observed, “It is the responsibility of the Medical Council to proceed against the medical practitioners… At the same time, the Medical Council also owes a duty to protect the medical practitioners, who are rendering yeomen service for the betterment of the general public, from the onslaught of frivolous complaints or to proceed against them in a hasty manner.“
Accordingly, the Court issued a slew of guidelines, which the TNMC was directed to refer to as a Standing Operating Procedure (SOP) for the purpose of effective complaint-handling mechanism, so as to avoid unnecessary allegations against the Medical Board.
10. Madras High Court Quashes Order Impounding Leena Manimekalai’s Passport Over Pendency Of Criminal Defamation Case; Orders Release Within One Week [Leena Manimekalai v. Regional Passport Officer]
In a writ petition challenging the impounding of Leena Manimekalai’s passport, the High Court has allowed the petitioner’s plea while setting aside the impounding order of Regional Passport Officer, Chennai on the grounds of pendency of criminal defamation proceedings against her.
Justice M. Dhandapani has directed the Regional Passport Office to release the impounded passport within a period of one week from the receipt of the court’s order.
In the order, the court has elaborately explained the illegality of impounding the petitioner’s passport and the non-application of mind by the regional passport officer so as to invoke Sections 10(3)(e) and Section 12 (1) (b) of the Passports Act. The court has also briefly mentioned the overzealousness of the passport authority in taking the extreme step of cancelling the passport citing a private complaint.
11. Madras High Court Orders Winding Up Of SpiceJet Ltd, Official Liquidator To Take Over The Company Assets [Credit Suisse AG v. SpiceJet Limited]
The Court ordered that SpiceJet Limited must be wound up and the assets must be taken over by the official liquidator on the grounds of proved inability of the Airlines to repay its debts.
Justice R. Subramanian was adjudicating a company petition filed by Credit Suisse AG, a Switzerland based Stock Corporation and a creditor, who alleged inability on the part of respondent Airlines to pay the debts owed to the former.
In the petition filed under Sections 433(e) and (f) r/w Sections 434 and 439 of the Companies Act, 1956, the single judge bench evoked the three-pronged test framed by the apex court in Mathusudan Gordhandas & Co. v. Madhu Woollen Industries (P) Ltd., (1971) 3 SCC 632 to determine the admission of winding up when the existence of debt is proved against SpiceJet Limited
12. Arbitration Court Not Empowered To Embark On Fact-Finding Exercise While Deciding Application For Setting Aside Arbitral Award: Madras High Court [Hindustan Petroleum Corporation Ltd. v. Banu Constructions & Anr.]
“While it is not necessary for an arbitral award to justify every paisa or a rupee awarded to the claimant, the broad premise on which the quantum is founded has to be discernible from award itself for the award to be meaningful or even intelligible in legal terms,” observed a Division Bench comprising of Former Chief Justice Sanjib Banerjee and Justice Senthilkumar Ramamoorthy. It slammed an Arbitration Court for upholding an unreasoned arbitral award and exceeding its jurisdiction in supplementing that award with reasons
The Bench made it clear that in a regular appeal, it is open to the Court to embark on a fact-finding exercise, to re-read and re-appraise the evidence, to interpret the documents afresh and to do all things de novo that the Court of original jurisdiction could have done.
However, such expansive authority is not available to an Arbitration Court while dealing with a petition for setting aside an award.
13. University’s Education Services, Including Affiliation Or Other Allied Services To Students, Exempt From Service Tax: Madras High Court [Madurai Kamaraj University v. Joint Commissioner]
The Court has ruled that the services provided by a University, including affiliation of colleges and other allied services are given to students are exempted from levy of Service Tax under the Finance Act 1994.
A single bench of Justice R Suresh Kumar gave this ruling in a writ petition filed by Madurai Kamaraj University challenging an order passed by the tax authorities demanding service tax for the period from 01.04.2013 to 30.06.2017.
The Court rejected the argument of the tax department that the exemption is available only to colleges and not universities.
“The word “educational institution”, cannot denote only the college affiliated to the university, but, it includes the university”, Justice Suresh Kumar wrote in the judgment.
The narrow interpretation given by the revenue department to the exemption clauses to mean that they will apply only to institutions that directly impart education to students was rejected by the Court.
The Court noted that services such as admissions to educational institutions is closely dependent on the affiliation of those institutions to the universities. Also, holding or conducting an examination is primarily a job of the university and the colleges affiliated with the university are only facilitators.
Therefore, the Court held that the activities of the Universities come within the phrase “services relating to admission to, or conduct of examination by, such institution” in clause 9(iv) of the Mega Exemption Notification.
14. ‘SBI Can’t Misinterpret RBI Circulars’- Madras High Court Holds Collection of Cash Handling Charges From Stamp Vendors Illegal [P.S Shanmuga Sundaram v. The Director, Treasuries And Accounts Department & Ors.]
The practice of collecting cash handling charges from stamp vendors who deposit money through treasury challans into the Government account must be done away with, the Court has ruled recently, giving strict directions to the State Bank of India.
Justice S.M Subramaniam made it clear that the two RBI Master Circulars in 2014 and 2021, vehemently relied on by the State Bank of India does not permit the collection of cash handling charges on Government transactions.
“Perusal of the Master Circulars relied on by the Second and Third Respondents /State Bank of India dated 01.07.2014 and 01.04.2021 reveals that the Second and Third Respondents are unable to establish that there is a direction/instruction/permission granted by the Reserve Bank of India to collect such cash handling charges on Government transactions. In the absence of any such specific direction or instructions from the Reserve Bank of India, the State Bank of India is not entitled to collect any cash handling charges from stamp vendors”, the court noted.
15. ‘Paid News Is One Of The Menaces Afflicting Our Media’: Madras HC Directs Constitution Of Press Council Of Tamil Nadu Within 3 Months [S Sekaran v. S.Sekaran and Ors]
In a bid to clamp down on fake journalists, paid news and journalists who are indulging in illegal, unethical practices, the Court has directed the Tamil Nadu government to create a Press Council of Tamil Nadu (PCTN) which would act as a State level media regulatory body.
A Bench of Justices N Kirubakaran (since retired) and P Velmurugan ordered that the proposed PCTN must be constituted within 3 months and should be headed by a retired judge of either the Supreme Court or the High Court. Furthermore, it was directed that experienced and reputed journalists, retired civil servants and Indian Police Service (IPS) officers must be its members.
“There should be a parameter such as minimum circulation for magazines or newspapers to claim themselves as press people. The credentials of the parties have to be verified in detail before issuing the identity cards, since many people having criminal backgrounds also claim to be press people and indulging in criminal activities using this as a shield like that of the many criminals who purchase law degrees and use it as a shield for their criminal activities. Since the image of the press off late is damaged because of the activities of the people who are claiming to be press reporters, the system has to be cleaned so that the interest of genuine journalists/press people will be protected“, the Court further added.
16. Madras High Court Sets Aside Acquisition Proceedings Of Former CM Jayalalithaa’s ‘Veda Nilayam’ Residence; Property To Be Handed Over To Legal Heirs [J. Deepak Vs The Secretary To Government And 3 Others & Connected Matters]
The Court set aside the land acquisition proceedings of former CM J Jayalalithaa’s residence, ‘Veda Nilayam’, at Poe’s Garden, Chennai. The single bench of Justice N Seshasayee has allowed the petitions filed by J. Deepak and J. Deepa, both the children of Late Jayalalithaa’s brother, challenging the Tamil Nadu Government order for acquiring ‘Veda Nilayam’ and converting it to a memorial.
While reading out the operative part of the order, Justice N. Seshasayee instructed the District Collector, Chennai to hand over the property to the legal heirs, i.e, J. Deepa and J. Deepak within three weeks. In the order, the court has also clarified that the Income Tax Department can proceed as per the law to recover the arrears chargeable on the estate due from Late J Jayalalithaa.
The court has also ordered that the compensation amount paid by the government, now deposited in the court, must be returned back with interest. While pronouncing the order, Justice N Seshasayee also mentioned that he pondered over the suitability of two memorials for the late Chief Minister. The grand memorial on Marina Beach was inaugurated earlier this year. The court said that it invoked the Public Purpose Doctrine to reach the decision.
17. Masters In Law, Enrolment As Advocate Not Required For Teaching ‘Pre-Law Courses’ At Govt Law Colleges: Madras High Court [V Lekha v. The Chairman, UGC]
The Court held that the notification issued by the Teachers Recruitment Board mandating candidates to be enrolled as an advocate and to possess a master’s degree in law (ML degree) in order to be qualified for appointment as Assistant Professors for pre-Law courses in Government law colleges is irrational and illegal.
The Court was adjudicating upon a batch of petitions wherein the petitioners contended that such ‘non-essential qualifications’ have absolutely no value addition to their appointments as they are to be recruited only for teaching pre-law courses in the subject concerned.
“Requiring more qualifications, not connected to to the main qualification in the finer discharge of duties, the teacher concerned would inevitably be a person of mediocre knowledge of not excelling in the relevant subject or in law, either“, it was noted.
It also made a reference to the Legal Education Rules, 2019 which is yet to be notified and observed that the offer made to students to study various subjects such as Arts, Science, Commerce or Technology does not mean that the subjects are to be taught at ‘a cursory or superficial level.’
18. Non-Resistance At Time Of Sexual Assault From First Time By Accused Amounts To Victim’s Pre-Consent: Madras HC [Chinnapandi v. State]
The Court has observed that the non-raising the resistance by the Victim at the time of committing the sexual assault as from first time by the accused would amount to pre-consent of the Victim and therefore, the consent so given can’t be held as a misconception of fact.
Justice R. Pongiappan was dealing with an appeal filed to set aside a man/accused conviction under Sections 376 of IPC who allegedly promised to marry the victim, however, didn’t fulfill the promise.
Also, noting that the prosecutrix had complained about the issue to others only at the time the appellant has disowned his promise, the Court remarked thus:
“The said circumstances reveals the fact that during the relevant point of time, the prosecutrix was also willing and the accused had also promised to marry her once after the completion of his brother’s marriage. Acting on such assurance, the prosecutrix started cohabiting with the accused and the same was continued for several months during which period the accused spent most of the evening hours with her. Eventually, when she conceived and insisted that the marriage should be performed as quickly as possible, the appellant suggested for abortion. Since the proposal was not accepted by the prosecutrix, the appellant disowned the promise and ultimately, the case has been registered.“
19. “No Monopoly Over Coronil”; Madras High Court Sets Aside Order Restraining Patanjali Ayurveda from Using The trademark ‘Coronil’ [M/s. Pathanjali Ayurved Ltd. & Anr. v. Arudra Engineers Pvt. Ltd.]
A Division Bench of Justices R Subbiah and C Saravanan set aside a Single Bench order restraining Patanjali Ayurveda from using the trademark ‘Coronil’- the controversial drug that the company initially claimed to be a cure for the deadly Coronavirus. It noted that the Petitioner in the trademark infringement suit registered marks, ‘CORONIL-92 B’ and ‘CORONIL- 213 SPL’ as composite marks and could not claim monopoly over the word Coronil simplicitor.
Reference was made to Section 17 of the Trade Marks Act, 1999, where protection is only afforded to the entire trademark as registered, and not to mere parts of the trademark.
The Bench observed,
“The above label marks were registered as composite marks. As is evident, these label mark consists of a common device, common word “coronil” and alpha numerals namely “92 B” and “213 SPL” respectively. On the other hand, the defendants used the word “Coronil” as a word mark simpliciter.
The mark ‘Coronil’ became a subject matter of lis when a Chennai based private company Arudra Engineering moved the High Court claiming rights over it.
Reliance was placed on Registrar of Trade Marks v. Ashok Chandra Rakhit Ltd., where the Supreme Court had held that the distinct label registered as a whole cannot possibly give any exclusive statutory right to the proprietor of the trademark in close any particular word the name contained therein apart from the mark as a whole.
Further, the Division Bench noted that Arudra had neither applied for nor registered the word “Coronil” as a word mark even though it was an invented word and prima facie distinctive word.
20. Petition U/s 482 CrPC Seeking Quashing Of A Domestic Violence Application Not Maintainable: Madras High Court [Dr. P. Pathmanathan v. V. Monica]
A Bench of Justice N. Anand Venkatesh held that a petition under Section 482 of CrPC to quash a complaint under Section 12 of the Domestic Violence Act is not maintainable. It observed that a petition under Article 227 of the Constitution may be maintainable if it is shown that the proceedings before the Magistrate suffer from a patent lack of jurisdiction.
“The plenitude of the inherent power under Section 482, Cr.P.C does not extend to annul proceedings which are not before a Criminal Court. As pointed out supra, to constitute a criminal court, it is not sufficient that the Court is one of the Courts enumerated under Section 6 Cr.P.C, it is also necessary that the proceedings before it are criminal in character. If the proceeding before the Court is civil in nature, then it cannot be said that the Court is a Criminal Court exercising criminal jurisdiction for the purposes of Section 482, Cr.P.C.,” the Court observed while dismissing a batch of petitions filed under Section 482 CrPC seeking to quash complaints filed under Section 12 of the DV Act.
21. ‘Intersectional Discrimination’: Madras HC Lays Down Guidelines For Fair Treatment Of Disabled Women Athletes, Condemns ‘Romantic Paternalism’ [ M. Sameeha Barvin v. The Joint Secretary, Ministry of Youth & Sports & Ors.]
Madras High Court has issued comprehensive directions to the respondent authorities to streamline the policy that pertains to women athletes with disabilities and their fair treatment, invoking the doctrines of ‘reasonable accomodation’ and ‘indirect discrimination’, along with the principles of ‘romantic paternalism’ and ‘intersectionality’
Justice R. Mahadevan observed that the case at hand was a clear instance of ‘discrimination based on the gender as well as the disability’ and that the state and central governments have failed in their responsibility to ensure support and safety to disabled women athletes.
The court noted that the principle of ‘reasonable accommodation’ has been stipulated in the Act under section 2(y), which means “necessary and appropriate modification and adjustments, without imposing a disproportionate or undue burden in a particular case, to ensure to persons with disabilities the enjoyment or exercise of rights equally with others”.
22. Elected Bar Association Office Bearers Cannot Contest Consecutively: Madras High Court Issues Directions To End Monopoly In Bar Elections [V. Madhesh v. Bar Council of Tamil Nadu & Puducherry]
With the aim of ending monopoly in Bar Association elections, a division bench comprising Justices N Kirubakaran and R Pongiappan ruled that elected office bearers should not be allowed to contest for the second time consecutively. The Court however permitted such elected members to contest alternatively.
“The provision to contest in the alternate election will be a healthy norm, which will enable all the members to contest the election and get elected without providing any room for monopoly”, it observed.
The Court declared that “all the Bar/Advocate associations in the State of Tamil Nadu shall have rule that the elected office bearers cannot contest next election continuously and they can contest in the alternate elections. To put it in other words, there shall be a prohibition for the elected office bearers of the Bar/Advocate Associations in the State to contest in the following/next election and they can contest in the alternate elections only”.
23. ‘Tarnished Her Self Esteem’: Madras High Court Invokes Suo Motu Revisional Powers, Holds Sexual Assaulter Guilty Of Abetment To Suicide [Nagarajan v. The State Represented By The Inspector Of Police]
In a pertinent judgment, Madurai Bench has invoked its suo moto revisional powers to set aside the Sessions Court Order acquitting the accused of abetment to suicide.
Justice B. Pugalendhi addressed the four corners of suo moto revisional jurisdiction of the High Court and held the accused guilty of abetment to suicide under Section 306 IPC along with other charges. In 2015, Fast Track Mahila Court, Dindigul, had already held the accused guilty under Sections 354 (Assault or criminal force to woman with intent to outrage her modesty) and 448 IPC (Punishment for house-trespass).
In the common judgment for the criminal appeal and the suo motu criminal revision petition, the court observed:
“The High Court, under Section 401 Cr.P.C., is having the power to call for the records without the intervention of another agency. The High Court as an effective instrument in the administrative of criminal justice is duty bound to suo motu act where there is flagrant abuse of law. The nature of offence and the manner of disposal by the trial Court has prompted the Court to take up the suo motu Criminal revision petition for the ultimate social good of the community.”
24. ‘LGBTQIA+ Community Cannot Be Left In A Vulnerable Atmosphere’: Madras HC Issues Guidelines Against Police Harassment [S. Sushama & Anr. v. Commissioner of Police & Ors.]
In a significant judgment upholding the rights of members of LGBTQIA+ community, a single bench of Justice Anand Venkatesh issued a slew of guidelines to ensure that they are not harassed by police in missing complaints lodged by their parents.
While considering a writ petition filed by two lesbian women against police harassment, the Court noted that a societal change is needed in the approach towards LGBTQIA+ relationships. The hostilities they face are due to the fact that their relationship do not enjoy societal sanction. It issued a total of 8 guidelines, detailing a procedure that may be followed by the community in case of harassment. This includes assistance from Centre approved NGOs, monetary support, legal assistance, skill development, etc.
The Court observed that legislative changes are needed to eradicate the social discrimination against LGBTQIA+ community and to ensure the protection of their life and dignity. In this regard, the court mentioned how legislative interventions are changing the attitude towards persons with disabilities and mental illness. The Court called for similar legislative interventions with respect to LGBTQIA+ community as well.
Also Read: ‘My Upbringing Treated “Homosexual”, “Gay”, “Lesbian” As Anathema’ : Madras HC Judge Explains How He Overcame Prejudice Against LGBTQIA+ Community
25. Recommendations Of State Human Right Commission Are Legally Enforceable, Binding On Govt/Authorities: Madras High Court (FB) [Abdul Sathar v. Principal Secretary to Govt. & Ors.]
A Full Bench comprising of Justices S. Vaidyanathan, Parthiban and M Sundar held that the recommendation of State Human Rights Commission under Section 18 of the Protection of Human Rights Act, 1993 is binding on the Government or Authority. It further held that it’s adjudicatory orders are legally and immediately enforceable.
The State has no discretion to avoid implementation of the recommendation and in case the State is aggrieved, it can only resort to legal remedy seeking judicial review of the recommendation of the Commission, the court held. The Commission can order recovery of the compensation from the State and payable to the victims of the violation of human rights under Sub Clause (a)(i) of Section 18 of the Act and the State in turn could recover the compensation paid, from the Officers of the State who have been found to be responsible for causing human rights violation.
In regard to the imposition of penalty as a consequence of a delinquent official being found guilty of the violation, a limited departmental enquiry may be conducted only to ascertain the extent of culpability of the Official concerned in causing violation in order to formulate an opinion of the punishing Authority as to the proportionality of the punishment to be imposed on the official concerned. The High Court also held that since the recommendation of the H.R.Commission is held to be binding, an officer/employee concerned can resort to appropriate legal remedy at any stage qua complaint or inquiry by the Commission but only on substantial legal grounds.
26. Delay In Producing Accused Arrested Through PT Warrant Before Court Is Violative Of His Fundamental Right Under Article 21: Madras High Court [M. Kishore v. Inspector Of Police]
The court observed that the purpose of a P.T. warrant is only to direct the production of a person confined or detained in a prison through a lawful order and such a warrant cannot be interpreted to mean that the same will authorize the Police to curtail the liberty of a person by keeping the accused person in custody till he is produced before the concerned Court.
Justice N. Anand Venkatesh observed that the delay in producing the accused person before the Court after a formal arrest through a Prisoner on Transit warrant, would violate the liberty guaranteed to him under Article 21 of the Constitution of India.
“Where the investigating officer decides to arrest the accused person through a formal arrest, the accused person does not come into the physical custody of the police and for the purpose of calculating the period of 60 days or 90 days as contemplated under the proviso to Section 167(2) of Cr.P.C., it can be computed only from the date of detention as per the orders of the Magistrate and not from the date of formal arrest by the Police. A P.T. Warrant cannot be used for the purpose of keeping a person in detention without producing him before the concerned Court and such non-production will certainly curtail the liberty of a person”, observed the court.
27. Writ Jurisdiction U/A 226 May Be Exercised At Pre-Detention Stage In Case Of Potential Threat To A Person’s Fundamental Rights: Madras High Court [D. Aswin Rao v. State & Ors.]
A Single Bench of Justice N. Anand Venkatesh held that Article 226 of the Constitution empowers the High Court to exercise its writ jurisdiction even at a pre-detention stage, if it is of the view that there is a potential threat of violation of a person’s fundamental right under Article 21 of the Constitution.
The finding comes with a rider that before exercising such jurisdiction, the Court concerned must satisfy itself that there is a potential threat of violation of Article 21 of the Constitution. For this, the Bench said, there must be some materials before the Court to determine the existence of a potential threat. “It cannot be based on mere apprehensions and this Court can only act on some overt acts,” it held.
The Court also made it clear in this case that the Court cannot take action for internal thoughts. It held that protection can be granted only after overt acts.
It opined that if overt acts towards violation have already been done and the same has come to the knowledge of the person threatened with that violation and he approaches the court under Article 226 giving sufficient particulars of proximate actions as would imminently lead to violation of right, the court may call upon those alleged to have taken those steps to appear and show cause why they should not be restrained from violating that right.
In the case at hand, the petitioner originally belonged to Adi- Dravidar Community and married a person from Hindu Arunthathiyar community, both of which are originally Scheduled Castes. The petitioner was later given a ‘Backward Class’ Certificate on account of his subsequent conversion to Christianity.
“When, both the petitioner and his wife belong to Scheduled Caste community by birth, merely because the petitioner by virtue of conversion changed the religion would not entail him to get the inter-caste marriage certificate”, the court recorded in the order.
29. Madras High Court Bats For Common Cremation/ Burial Grounds Without Caste Segregation, Suggests Penal Action Against Any Violation [B. Kalaiselvi & Anr.v. The District Collector & Others]
In a plea filed for assigning a permanent burial ground for the members of Arunthathiyar Community, the Court has recently held that segregation of burial ground for a particular caste/ community cannot be endorsed by the Court.
Taking note of the discrimination meted out to people on the basis of caste, even in death, Justice R. Mahadevan suggested a slew of measures that may be adopted by the local bodies, state government and other authorities to curb the menace of caste segregation.
“…any act of segregation or discrimination in cremation/burial of the dead body on the basis of caste or community within a religion, as well as preventing the members of any caste/community from burying/cremating their dead in common cremation grounds or grounds meant or earmarked for cremation/burial, and earmarking cremation/burial grounds for any particular caste/community exclusively, is violative of Articles 14, 15, 17 and 25 of the Constitution as well as against the spirit of the Fundamental Duties enshrined in the Constitution. As such, the prayer made in this writ petition qua allocation of a permanent place for burial ground for a particular community viz., Arunthathiyar community, cannot be entertained by this court.”, noted the court.
30. Hyper Nationalism Goes Against Prosperity Of Our Nation From All Its Past Glory: Madras High Court [State v. D. Senthilkumar]
A Single Bench of Justice N. Anand Venkatesh held that cutting of a cake that is iced like the National Flag will not amount to an ‘insult’ to attract the offence under Section 2 of the Prevention of Insults to National Honour Act, 1971. It observed that patriotism is not determined by a physical act and that the intention behind the act is the true test in such cases.
It observed, “There is no doubt that nationalism in a democracy like India is very vital. But, hyper and surfeit adherence to it goes against the prosperity of our nation from all its past glory. A patriot is not one who only raises the Flag, symbolises his national pride and wear it on his sleeve, but also, a person who bats for good governance. The symbolisation of national pride is not synonymous with patriotism, just like how cutting a cake is not unpatriotic.“
The Bench thus held,
“For any act to be termed as an offence under Section 2, Actus Reus and Mens Rea should be established. The Actus Reus being any of the actions in Section 2 and Explanation 4 and the Mens Rea being the intention to show disrespect or contempt.“
Reliance was placed on a decision of the Kerala High Court in PV Joseph, v. State of Kerala, 2016 SCC OnLine Ker 11466, where it was held that a prosecution would be unnecessary in a case where there was no intention on the mind of the accused person to dishonour the National Flag.
31. Madras High Court Directs Puducherry Fee Committee To Fix Fees For PG Medical Courses From 2017-18 Onwards Until Guidelines Are Framed By UGC/ NMC [VBR Menon v. Government of Puducherry & Ors.]
A Division bench of Justices TS Sivagnanam and V. Bhavani Subbaroyan ordered the Puducherry Fee Committee to fix the fee for Post Graduate Medical and Dental courses in Deemed Universities, for the from the academic year 2017-18 onwards till 2020-21. Further, students shall be entitled for refund of excess fees paid by them in terms of a previous order of the High Court.
The order was passed after taking note of the fact that reasonably high, arbitrary and prohibitive fees is being collected by the respondent Deemed to be Universities from the students.
The Court relied on Supreme Court’s decision in PA Inamdar v. State of Maharashtra, (2005) 6 SCC 537, wherein it was held that the admission of students in medical institutions as also the fee charged by such medical institutions are ex-facie matters of immense public importance and the court cannot shut its eyes to impediments in the way of individual litigation by young students and the Court can take note of the facts pleaded by a public spirited citizen in a public interest litigation and suo motu pass orders to redress the grievances of the student community
32. Rather Than Caste System Being Wiped Away, Reservation System Perpetuates It Endlessly: Madras High Court [DMK v. Rajesh Bhushan and Ors]
The Court opined that the Constituent Assembly had envisioned the reservation system to be in force only during the infancy period of Independent India, however it is now being endlessly extended through repeated amendments thereby perpetuating the caste system in the process.
The Court made the observation while dismissing the contempt of court plea filed by Dravida Munnetra Kazhagam (DMK) party against the Central government on the issue of implementing reservation for Other Backward Classes (OBC) in All India Quota (AIQ) medical college seats.
The Court had earlier held that Centre’s notification dated July 29, 2021 implementing 27 percent reservation for Other backward Classes (OBC) candidates in All India Quota (AIQ) seats of medical colleges in Tamil Nadu may be permissible subject to the Supreme Court’s formal approval of the same.
However, the Court expressed its reservations regarding the validity of extending a 10 percent reservation for Economically Weaker Sections (EWS) in AIQ seats and thus observed that the same is not permissible without the Supreme Court’s approval. The Bench also held that there had been no ‘wilful or deliberate’ violation on the part of the Central government in implementing the High Court’s earlier decision dated July 27, 2020 on this issue.
33. Madras High Court Dismisses DMK’s Plea Challenging Postal Ballots Provision In RP Act [Dravida Munnetara Kazhagam v. Union of India & Ors.]
A Division Bench comprising of Former Chief Justice Sanjib Banerjee and Justice Senthilkumar Ramamoorthy dismissed a writ petition filed by political party Dravida Munnetara Kazhagam (DMK) against Section 60(c) of the Representation of Peoples Act which permits issue of postal ballot to electors above the age of 80 years, electors with physical disability, electors in quarantine due to COVID-19 and electors rendering essential services.
It held, “all that the Election Commission has done here is to be inclusive and allow certain classes of persons who would have been excluded from exercising their franchise the right to use the postal ballot and participate in the celebration of the festival of democracy” It added, “if the process is made inclusive without compromising on either the secrecy of the ballot or the fairness in the conduct of elections, it would be a greater cause to celebrate and compliment the conducting body“
34. Tamil Nadu Should Be Compensated With Rs 5,600 Crores For Reduction Of Parliamentary Seats Owing To Successful Population Control: Madras High Court [M. Chandramohan v. The Secretary & Ors.]
The Court has termed as “unfair and unreasonable” the reduction in the parliamentary seats assigned to Tamil Nadu in the Lok Sabha after the State had managed to reduce its population in 1967 owing to the implementation of successful birth control measures.
It remarked that such a practice amounted to punishing States which implemented family planning measures successfully.
The Court made the observations while rejecting a plea to de-reserve Tenkasi parliamentary constituency which is presently reserved only for Scheduled Caste (SC) candidates. Tenkasi is stated to have the highest SC population (21.5%), the Court noted.
35. ‘Crime Against Society At Large’: Madras HC Directs State To Detain Temple Land Encroachers Under Goondas Act [NC Sridhar v. The Secretary to Government, Tourism, Culture, Religious Endowments Department]
The Court directed the Hindu Religious and Charitable Endowments Department (HR&CE) to issue a public notification stipulating that all encroachers of temple properties across the State must voluntarily surrender the lands within which failing which criminal proceedings would be initiated against them.
“In extreme cases, the provisions of the Goondas Act is to be invoked by the Police based on the facts to facts basis. In such circumstances, the respondents shall not hesitate to invoke the provisions of the Goondas Act against such professional land grabbers and persons involved in encroachment and illegal activities in respect of the temple properties at large for personal and unjust gains,” the Court stated.
In addition, the court also remarked that the protection of property belonging to the temple is the constitutional duty of the Courts.
The Court also ordered the State authorities to constitute a special cell to retrieve the encroached temple properties.