Whether a dead body, once buried, cannot be exhumed under Mohammedan law ?

Supreme Court heard a matter in a Special Leave Petition in which the petitioners appealed against the judgement and order given by the Bombay High Court. By the order and judgement, the high court had issued directions to exhume the body of late Baba who was a muslim with full respect to his saintly-hood and to arrange for its appropriate honorable burial in accordance with law, within a period of three days. The one of the other direction was to take all necessary steps to restore normalcy in the area so as to prevent the wrongdoers and mischief mongers from creating/continuing to affect the law and order situation, so that schools can be reopened and normal tempo of life is restored.

Facts of the case:

One 'Mohd. Mustafa Mohd. Ansari', popularly known as “Baba” died in 2011. He used to sit outside a school premises and he was respected by people of the locality. The school premises was leased out to Central Tanzeem Committee by the Government.

After the death of "baba", some people forcefully took his body and entered into the premises of the school, dug in the playground of the school and buried his dead body. As a result of this illegal act, there was disturbance of law and order in the locality and consequently there was also disturbance of the communal harmony amongst two sects at Mominpura. Since no action was taken by the police, the petitioners filed a writ petition in the high court who later adjudicated upon the matter however being aggrieved by the findings recorded by the high court, the parties moved to the Apex Court.

The Supreme Court while hearing the case, referred to various fatwas issued by the religious heads amd also some previous adjudged cases of similar issues. The court also considered the scope and ambit of Articles 25 and 26 of the Constitution of India while deciding on this case.

The court found that there was statutory violation in the unauthorized action of burial of the saint and Article 226 of the Constitution of India was the only remedial measure available. There was also the statutory violation in the instant case of Section 269 of the City of Nagpur Corporation Act and as held by the High Court, there was also violation of Section 133 of the Code of Criminal Procedure.
The action created tention in the public place and disturbed law and order there.

The court stated that "We also direct that the dead body of the saint would be exhumed from the place of its present burial and shifted to another appropriate place and buried in accordance with law with all dignity and respect and he shall be laid in peace for enabling his devotees to offer their prayers and respects as and when they desire in accordance with law."

Read the full judgement here.

One cannot be a beneficiary of his own wrongs: Supreme Court

Supreme Court decided on a crucial case of custody of a child between the divorced couple and pronounced the judgement in the favor of the Father. While deciding the matter the court observed various factors and circumstances of the case. The Court stated that "it becomes, at times, a difficult choice for the court to decide as to whom the custody should be given. No doubt, paramount consideration is the welfare of the child. However, at times the prevailing circumstances are so puzzling that it becomes difficult to weigh the conflicting parameters and decide on which side the balance tilts".

The couple married sometime in the year 1999. They lived in Faridabad for a short while and thereafter the couple shifted to U.K. soon. A girl child was born to them in the U.K. Soon after when their relationship did not go well, they filed divorce petition in the court of U.K and around the same time the man who had shifted to India also obtained the decree of divorce in Indian court. The girl remained with the father since the legal battle started and the court also decided the matter in his favor.

The case came up before the Supreme Court when the couple's daughter, Vaishali, was 11 years of age, the Bench (comprising of Aftab Alam and Ranjana Prakash Desai, JJ.) decided to meet Vaishali in order to interact with her to ascertain her view point. After meeting her the bench passed the order which stated “In the proceedings held on January 31, 2013, it was agreed between the parties and was also noted in the order passed on that date that the child Vaishali should stay with respondent No.1 (Sukriti Arora), the mother of the child at her residence in Delhi for one month under monitoring by this Court. In continuation of that order, therefore, we direct that Vaishali should stay with her mother, tentatively for one month from today, subject to any further direction that may be passed by this Court in the meanwhile. Ms. Madhavi Divan, one of the counsel representing the petitioner shall hand over the child to her mother-respondent No.1 outside the court room after we complete the passing of this order. Respondent No.1 shall deposit her passport with the Registrar (J-III) of this Court which shall be returned back to her after Vaishali goes back to her father on completion of the term of her stay with respondent No.1. We are informed that Vaishali's school is reopening from April 4, 2013. On behalf of Respondent No.1, it is stated that she will ensure that the child reaches the school in time and is brought back to her residence after school hours. The child's stay with her mother will, in no way, affect her attendance at the school or her studies.

During her stay with the mother, the child will be free to speak to her father on telephone. On behalf of respondent No.1, it was stated that she would not create any obstruction in the way of the child speaking to her father. During the child's stay with her mother, we would like some responsible and competent person to monitor the arrangement. We, accordingly, request Mrs. Sadhana Ramachandran, who works for the Delhi High Court Mediation and Conciliation Centre, to monitor the arrangement on behalf of this Court. Mrs. Ramachandran shall visit the mother and the child at the address noted above on a date and time of her convenience. She would inform respondent No.1 on her mobile phone about the proposed date and time of her visit to the respondent's place. She would see how the relationship between the child and the mother is developing and if need be, she would counsel both the child and the mother. If the father wants to visit the child while she is staying with her mother, he may do so at a time when Mrs. Sadhana Ramachandran is also present there. For the purpose of the visit he will have to take the necessary permission from Mrs. Ramachandran. It is submitted on behalf of Respondent No.1 that she would like to take the child to some resort or some hill station for a brief holiday. We would like the mother and the child to stay in Delhi itself but, in case, both the child and the mother together wish to go outside, they may do so subject to the permission in writing taken from Mrs. Ramachandran. Mrs. Ramachandran would submit a report to this Court within ten days from today. Let this matter be listed for further direction along with the report from Mrs. Ramachandran on April 12, 2013.”

The Hindu Minority and Guardianship Act, 1956 lays down the principles on which custody disputes are to be decided. Section 7 of this Act empowers the Court to make order as to guardianship. Section 17 enumerates the matters which need to be considered by the Court in appointing guardian and among others, enshrines the principle of welfare of the minor child. This is also stated very eloquently in Section 13.

The appellant argued that the child is living since long with the father. The court in response to the argument stated that "The argument is attractive. But the same overlooks a very significant factor. By flouting various orders, leading even to initiation of contempt proceedings, the appellant has managed to keep custody of the child. He cannot be a beneficiary of his own wrongs. The High Court has referred to these aspects in detail in the impugned judgments.”

Read the full judgement here.

The word ‘Free’ used in Article 301 of The Constitution of India does not mean “free from taxation”: Constitution Bench of Supreme Court

In the case of JINDAL STAINLESS LTD.& ANR. V/S STATE OF HARYANA & ORS. the Constitution Bench of Supreme Court including the former CJI T. S. Thakur has answered the reference in the following terms:

1. Taxes simpliciter are not within the contemplation of Part XIII of the Constitution of India. The word ‘Free’ used in Article 301 does not mean “free from taxation”.

2. Only such taxes as are discriminatory in nature are prohibited by Article 304(a). It follows that levy of a non-discriminatory tax would not constitute an infraction of Article 301.

3. Clauses (a) and (b) of Article 304 have to be read disjunctively.

4. A levy that violates 304(a) cannot be saved even if the procedure under Article 304(b) or the proviso there under is satisfied.

5. The compensatory tax theory evolved in Automobile Transport case and subsequently modified in Jindal’s case has no juristic basis and is therefore rejected.

6. Decisions of this Court in Atiabari, Automobile Transport and Jindal cases (supra) and all other judgments that follow these pronouncements are to the extent of such reliance over ruled.

7. A tax on entry of goods into a local area for use, sale or consumption therein is permissible although similar goods are not produced within the taxing state.

8. Article 304 (a) frowns upon discrimination (of a hostile nature in the protectionist sense) and not on mere differentiation. Therefore, incentives, set-offs etc. granted to a specified class of dealers for a limited period of time in a non-hostile fashion with a view to developing economically backward areas would not violate Article 304(a). The question whether the levies in the present case indeed satisfy this test is left to be determined by the regular benches hearing the matters.

9. States are well within their right to design their fiscal legislations to ensure that the tax burden on goods imported from other States and goods produced within the State fall equally. Such measures if taken would not contravene Article 304(a) of the Constitution. The question whether the levies in the present case indeed satisfy this test is left to be determined by the regular benches hearing the matters.

10. The questions whether the entire State can be notified as a local area and whether entry tax can be levied on goods entering the landmass of India from another country are left open to be determined in appropriate proceedings.

Read the full judgement here.

FLAG CODE OF INDIA, 2002 - The Law related to the Display of The Indian National Flag

Source MHA GOI: There is a universal affection and respect for, and loyalty to, the National Flag. Yet we often notice lack of awareness among people and also government organisations and agencies relating to the laws that regulate the practice and conventions that apply to the display of the National Flag.
The display of the National Flag is governed by the provisions of the Emblems and Names (Prevention of Improper Use) Act, 1950 and The Prevention of Insults to National Honour Act, 1971.
Flag Code of India, 2002 is an attempt to bring together all such laws, conventions, practices and instructions for the guidance of display of the National Flag of India.

The Indian National flag represents the hopes and aspirations of the people ofIndia. It is the symbol ofour national pride. Over the last five decades, several people including members of armed forces have ungrudgingly laid down their lives to keep the tricolour flying in its full glory.

Dr. S. Radhakrishnan in the constituent assembly explained-"Bhagwa or the saffron colour denotes renunciation of disinterestedness. Our leaders must be indifferent to material gains and dedicate themselves to their work. The white in the centre is light, the path oftruth to guide our conduct. The green shows our relation to soil" our relation to the plant life here on which all other life depends. The Ashoka Wheel in the center ofthe white is the wheel of the law of dharma. Truth or satya, dharma or virtue ought to be the contralling principles ofthose who work under this flag. Again, the wheel.denotes motion. There is death in stagnation. There is life in movement. India should no more resist change, it must move and go forward. The wheel represents the dynamism ofa peaceful change."

The law does not put any restrictions on the general public or any private organisations or an educational institutions to display the National Flag except to the extent provided in the Emblems and Names (Prevention of Improper Use) Act, 1950· and The Emblems and Names (Prevention of Improper Use) Act, 1950. The rules provide instructions on how to properly and respectfully hoist and display the National Flag

The second section of the code further explains how the national flag must be hoisted in any educational institutions. It states:

The National Flag may be hoisted in educational institutions (schools, colleges;sports camps, scout camps, etc.) to inspire respect for the Flag. A model set ofinstructions for guidancee is given below-

(i) The School will assemble in open square formation with pupils forming the three sides and the Flag-staff at the centre ofthe fourth side. The Headmaster, the pupil·leader and the person unfurling the Flag (if other than the Headmaster) will stand three paces behind the Flag-staff.

(ii) The pupils will fall according to classes and in squads of ten (or other number according to strength). These squads will be arranged one behind the other. The pupil leader ofthe class will stand to the right ofthe first row of his class and the form master will stand three paces behind the last row ofhis class, towards the middle. The classes will be arranged along the square in the order ofseniority with the seniormost class at the right end.

(iii) The distance between each row should be at least one pace (30 inches); and the space between Form and Form should be the same.

(iv) When each Form or Class is ready, the Class leader will step forward and salute the selected school pupil leader. As soon as all the Forms are ready, the school pupil leader will step up to the Headmaster and salute him. The Headmaster will return the salute. Then, the Flag will be unfurled. The School pupil leader may assist.

(v) The School pupil leader iri charge of the parade (or assembly) will call the parade to attention, just before the unfurling, and he will call them to the salute when the Flag flies out. The parade will keep at the salute for a brief interval, and then on the command "order", the parade will come to the attention position.

(vi) The Flag Salutation will be followed by the National Anthem. The parade will be kept at the attention during this part ofthe function

(vii) On all occasions when the pledge is taken, the pledge will follow the National Anthem. When taking the pledge the Assembly will stand to attention and the Headmaster will administer the pledge ceremoniously and the Assembly will repeat it after him.

(viii) In pledging allegiance to the National Flag, the practice to be adopted in Schools is as follows:- Standing with folded hands, all repeat together the following pledge: "I pledge allegiance to the National Flag and to the Sovereign Socialist Secular Democratic Republic for which it stands.

It further mentions the rules to be followed in general.

Wherever the Flag is flown, it should occupy the position of honour and be distinctly placed. Where the practice is to fly the Flag on any public building, it shall be flown on that building on all days including . Sundays and holidays and, except as provided in this Code, it shall be flown from sun-rise to sun-set irrespective ofweather conditions. The Flag may be flown on such a building at night also but this should be only on very special occasions. The Flag shall always be hoisted briskly and lowered slow·ly and ceremoniously. When the hoisting and the lowering of the Flag is accompanied by appropriate bugle calls, the hoisting and lowering should be simultaneous with the bugle calls. When the Flag is displayed from a staff projecting horizontally or at an angle from a windowsill, balcony, or front of a building, the saffron band shall be at the farther end ofthe s aff. When the Flag is displayed flat and horizontal on a wall, the saffron band shall be upper most and when displayed vertically, the saffron band shall be to the right with reference to the Flag, i.e., it may be to the left of a person facing it. When the Flag is displayed' on a speaker's platform, it shall be flown on a staff'on the speaker's right as he faces the audience or flat against the wall above and behind the speaker. When used on occasions like the unveiling of a statue, the Flag shall be displayed distinctly and separately. When the Flag is displayed alone on a motor car, it shall be flown from a staff, which should be affixed firmly either on the middle front ofthe bonnet or to the front right side ofthe car.read more

Case Study:{ STATE OF KARNATAKA V/S SELVI J. JAYALALITHA & ORS } IN THE SUPREME COURT OF INDIA

Appeals project a challenge to the judgment and order dated 11.5.2015 rendered by the High Court of Karnatka in the appeals preferred by the respondents herein, thereby acquitting them of the charge under Sections 120B and 109 of Indian Penal Code, 1860 (for short “IPC”) read with Sections 13(1)(e) and 13(2) of the Prevention of Corruption Act, 1988 (for short “1988 Act”) as framed against them and also resultantly setting-aside the order of the Trial Court for confiscation of properties, both movable and immovable, of the concerned firms, as mentioned therein. In the meantime, after the conclusion of the arguments, the respondent No.1 expired and, thus in law, the appeals against her have abated. Nevertheless, in view of the gamut of the imputations and the frame-work of the charges as well as the nature of the evidence, oral and documentary, available on records, reference to her role and involvement, based thereon in collaboration with other respondents would have to be essentially examined. The respondents-accused would hereinafter be referred to as respondents/accused/A1/A2/A3/ A4, as the case may be, contingent on the context.read more

The Trial Court after analyzing oral and documentary evidence came to the conclusion that the accused have not disputed the loan transactions and as a result whereof it held that the prosecution has proved Item Nos.1 to 8 of AnnexureIV. In respect of Item Nos.9 to 21, the Trial Court after duly considering the evidence, both oral and documentary, held that the accused did not dispute the statutory permission obtained by them for constructing new buildings and addition of the building as noted in Exts.65, 64, 51, 54, 63, 56, 48, 49, 50, 59, 60, 61, 62, 66 and 76, respectively and therefore, it appeared that the receipts for such payments and the proceedings maintained by the concerned municipal authority had been established by the prosecution. Similarly, the Trial Court held that payments made with respect to item Nos.23 to 35, 37 to 44, 46, 48 to 54 & 56 to 176 had been proved by the prosecution. The corresponding documents have already been accepted before the Court and hence such expenditure has been proved by the prosecution. With regard to Item Nos.178 to 198, such expenditures were never disputed on behalf of the accused before the Court. After analyzing the evidence of  the prosecution witnesses and their depositions, it held that item Nos.229 & 230 have also been proved by the prosecution.

The Trial Court has duly considered the objections raised on behalf of the accused and rejected the same. Similarly, the Trial Court has also dealt with other expenditures such as household expenses (Item No.225 in the Chart) and the objections raised on such account on the ground of overlapping entries and it came to the conclusion that the argument of the learned counsel raising the objections cannot be accepted. After analyzing the oral and documentary evidence placed on record and the judgments cited before it, the Trial Court came to the following conclusion: “Prosecution has proved beyond reasonable doubt that as against the income of Rs.9,91,05,094.75 and expenditure of Rs.8,49,06,833.00 during the check period, A1 acquired and possessed in her name and in the names of A2 to A4 and in the names of the business enterprises acquired in their names immovable properties and pecuniary resources of the value of Rs.53,60,49,954.00 which she could not satisfactorily account. Hence, acting u/Sec. 248 (2) of 896 Spl.C.C.208/2004 Cr.P.C., A1 is hereby convicted for the offence punishable u/Sec. 13 (1) (e) R/w. Sec. 13 (2) of 1988 Act.
Prosecution has proved beyond reasonable doubt that, A1 to A4 were parties to criminal conspiracy with the object of acquiring and possessing pecuniary resources and assets to the extent of Rs.53,60,49,954.00 beyond the known source of income of A1. Hence, A1, A2, A3 and A4 are hereby convicted for the offence punishable u/Sec. 120-B of I.P.C. R/w. Sec. 13 (1) (e) R/w. Sec. 13 (2) of 1988 Act. Prosecution has proved beyond reasonable doubt that A2 to A4 abetted the commission of the above offence by intentionally aiding A1 in the acquisition and possession of pecuniary resources and properties disproportionate to her known source of income as above. Hence, A2, A3 and A4 are hereby convicted for the offence punishable u/Sec.109 of I.P.C. R/w. Sec. 13 (1) (e) R/w. Sec. 13 (2) of 1988 Act.”

The Trial Court after hearing the learned counsel appearing for the accused and the learned Public Prosecutor on sentence, awarded the following sentence against the accused: “For the offence u/Sec. 13 (1) (e) R/w. Sec. 13 (2) of the 1988 Act, A1 Selvi. J. Jayalalitha, D/o. Late. Jayaram, is hereby sentenced to undergo simple 908 Spl.C.C.208/2004 imprisonment for a period of four years and a fine of Rs.100 crores. In default to pay the fine amount, she shall undergo further imprisonment for one year. For the offence punishable u/Sec. 120-B I.P.C., R/w. Sec. 13 (2) of 1988 Act, A1 is sentenced to undergo simple imprisonment for six months and to pay fine of Rs.1 lakh. In default to pay the fine, she shall undergo further imprisonment for one month. For the offence punishable u/Secs. 109 of I.P.C., R/w. Sec. 13 (2) of 1988 Act, A2 Tmt. Sasikala Natarajan, A3 Tr. V.N. Sudhakaran and A4 Tmt. J. Eavarasi are sentenced to undergo simple imprisonment for a period of four years each and to pay fine of Rs.10 crores each. In default to pay the fine amount, A2, A3 and A4 shall each undergo further imprisonment for one year. For the offence punishable u/Sec. 120-B of I.P.C. R/w. Sec. 13 (2) of 1988 Act, A2, A3 and A4 each are sentenced to undergo simple imprisonment for a period of six months and to pay fine of Rs.10,000/- each. In default to pay the fine amount, A2, A3 and A4 shall each undergo further imprisonment for one month. Substantive sentences of imprisonment shall run concurrently. Period of custody already undergone by the accused shall be given set off u/Sec. 428 of Cr.P.C. It is further ordered that, necessary direction shall be issued to the concerned banks to remit the proceeds of the Fixed Deposits and the cash balance standing to the credit of the respective accused in their bank account and the proceeds thereof shall be appropriated and adjusted towards the fine amounts. If after adjustment, still the fine falls short, the gold and diamond ornaments seized and produced before the Court (after setting apart 7040 grams of gold with proportionate diamond jewellery), as observed in the body of the judgment shall be sold to RBI or SBI or by public auction to make deficit of fine amount good. The rest of the gold and diamond jewellery shall be confiscated to the Government.