Year in review | Delhi

A landmark year for Delhi High Court

Thirty-four years after the mass killing of Sikhs in riots that swept the city in the aftermath of the assassination of then Prime Minister Indira Gandhi, the Delhi High Court in December 2018 convicted Congress leader Sajjan Kumar for the killing of five in Raj Nagar and sent him to jail for the remainder of his natural life.   | Photo Credit: Hindu Archives

As the year comes to an end, The Hindu takes a look at some of the decisions of the Delhi High Court that transcended State boundaries in its implications, opened new avenues for women in the forces, and promoted public interest.

The year will go down in history as the year the Delhi High Court warned perpetrators of mass crimes that they will not escape prosecution and punishment even if they enjoyed “political patronage”.

Mirchpur riots

Eight years after a caste violence incident rocked Mirchpur village in the neighbouring State of Haryana, the Delhi High Court in August 2018 convicted four persons of murder and 28 others from the Jat community of rioting and other crimes.

On April 21, 2010, an irate mob of people from the Jat community — the dominant community in Mirchpur — burned down 18 houses belonging to the Valmikis, a Dalit community. A 60-year-old Dalit and his differently-abled daughter were burnt alive during the riot.

The trigger for the riot was a seemingly trivial incident that took place on the evening of April 19, 2010, when a dog, which belonged to a Valmiki resident, barked at a group of Jat youth.

At least 254 Valmiki families fled Mirchpur in the aftermath of the riot and many sought shelter in a farmhouse of one Ved Pal Tanwar. Over eight years later, many of those who fled are yet to return to Mirchpur.

In December 2010, the Supreme Court ordered shifting of the case from Haryana to Delhi following apprehensions whether a fair trial would be conducted in the State. The Delhi HC overturned the acquittal of 20 persons who were earlier acquitted by the trial court.

The Delhi HC noted that even seven decades after Independence, atrocities on communities belonging to the Scheduled Caste have shown no signs of abating.

“The atmosphere of fear created by the members of the dominant Jat community was evidently so severe that the confidence of the members of the Valmiki community about their safety and security in Mirchpur is yet to be restored,” the HC noted.

Hashimpura massacre

Over 31 years after 38 Muslims from Hashimpura were rounded up and shot by the Uttar Pradesh Provincial Armed Constabulary (PAC), the Delhi High Court in October 2018 sent 16 former PAC jawans to life imprisonment for murder.

Over 31 years after 38 Muslims from Hashimpura were rounded up and shot by the Uttar Pradesh Provincial Armed Constabulary (PAC), the Delhi High Court in October 2018 sent 16 former PAC jawans to life imprisonment for murder.

Over 31 years after 38 Muslims from Hashimpura were rounded up and shot by the Uttar Pradesh Provincial Armed Constabulary (PAC), the Delhi High Court in October 2018 sent 16 former PAC jawans to life imprisonment for murder.   | Photo Credit: Shanker Chakravarty

 

“This was a case of targeted killing... revealing an institutional bias within the law enforcement agents in this case,” the HC had noted.

The shooting happened on the evening of May 22, 1987, when around 45 elderly men and young boys from the Muslim community were rounded up by the PAC, packed into a truck, and taken away.

Thirty-eight were shot by the PAC personnel with their State-issued .303 rifles. Some of the bodies were despatched in Gang Nahar (canal), the others in Hindon river. Bodies of only 11 victims were ever identified by their relatives. The remaining bodies were never recovered.

The five who managed to survive the incident recounted the horrific tale. The Delhi HC rued that this case is yet another instance of “custodial killing where the legal system has been unable to effectively prosecute the perpetrators of gross human rights abuses”.

“The prolongation of the trial for over two decades, compounded by the endemic systemic delays, have frustrated the attempts at securing effective justice for the victims,” it added.

Anti-Sikh riots

Thirty-four years after the mass killing of Sikhs in riots that swept the city in the aftermath of the assassination of then Prime Minister Indira Gandhi, the Delhi HC in December 2018 convicted Congress leader Sajjan Kumar for the killing of five Sikhs in Raj Nagar and sent him to jail for the remainder of his natural life.

The HC termed the killing of nearly 3,350 Sikhs in Delhi, between November 1 and 4, 1984, and the rest of the country, as “crimes against humanity”. The riots, the court noted, were “engineered by political actors with the assistance of the law enforcement agencies”.

It further observed that a majority of the perpetrators of the horrific mass crimes in the anti-Sikh riots enjoyed “political patronage” and escaped prosecution and punishment for over three decades.

The HC noted that bringing such criminals to justice poses a serious challenge to thelegal system as the cases related to anti-Sikh riots have been dragging on for over three decades.

It, however, remarked that such challenges were not limited to the anti-Sikh riots cases. “There has been a familiar pattern of mass killings in Mumbai in 1993, in Gujarat in 2002, in Kandhamal, Odisha in 2008, in Muzaffarnagar, U.P., in 2013 to name a few,” the Bench had remarked.

“Common to these mass crimes were the targeting of minorities and the attacks spearheaded by the dominant political actors being facilitated by the law enforcement agencies,” the HC had observed.

In public interest

Throughout the year, the Delhi High Court also brought in a series of reforms that benefited everyone.

The HC kicked off the year with a verdict that ended discrimination in health insurance policies against individuals with genetic disorders.

In February, the HC ruled that a person suffering from a genetic disorder needs medical insurance as much as anyone else. The verdict opened up a large number of ailments as claimable under medical insurance.

“The exclusionary clause of ‘genetic disorders’, in the insurance policy, is too broad, ambiguous and discriminatory - hence violative of Article 14 of the Constitution,” the HC said.

Most health insurance policies have exclusionary clauses that prevent the insured from getting a claim if he/she suffers from a genetic disorder.

The HC directed the Insurance Regulatory Development Authority of India (IRDA) to take a look at the exclusionary clauses in insurance contracts and ensure that insurance firms do not reject claims on the basis of exclusions relating to genetic disorders.

Substance abuse

InFebruary,the HC called for expanding a section in the Juvenile Justice (JJ) Act, which prohibits sale of intoxicating liquor to a child, to also include over-the-counter items such as whitener, thinners and vulcanising solution or sulochans.

Section 77 of the JJ Act prescribes up to seven-year jail term for person who gives or sells any intoxicating liquor or any narcotic drug or tobacco products or psychotropic substance to a child.

The HC was dealing with the issue of substance abuse in children. It said the consumption of such substances by children is with the object of deriving the effect of intoxication, but they not likely to be aware of their harmful effects.

Inter-faith marriage

A person who marries under the Special Marriage Act and then converts to the partner’s religion is entitled to invoke the jurisdiction of a Family Court, instead of the personal law for dissolution of marriage, the Delhi HC ruled in March.

Giving clarity on the issue faced in many inter-religion marriages the HC stated: “When a person solemnises marriage under this law, then the marriage is not governed by personal laws but by the Special Marriage Act”.

The direction came on a plea moved by a man challenging the jurisdiction of the Family Court, where his wife had filed for divorce, claiming that their marriage was governed by Muslim Personal Law as she had performed ‘nikah’ ceremony after they got married under the Special Marriage Act.

The HC dismissed the man’s petition.

The Special Marriage Act provides a special form of marriage, its registration and divorce. A marriage between any two persons belonging to any religion or creed may be solemnised under this Act. Ruling that that Family Court has jurisdiction to “entertain and try” the divorce petition, the HC directed the Family Court to expedite and decide the woman’s petition for divorce.

Begging decriminalised

Noting that criminalising begging was the wrong approach to deal with the underlying causes of the problem, the Delhi HC in August quashed provisions in the law that made begging a punishable offence.

The act of begging in the national capital was made a criminal offence after the Bombay Prevention of Begging Act, 1959, was extended to Delhi by a Central government amendment in 1960.

The law prescribes a penalty of up to three years of detention in beggar homes in case of first conviction for begging, and the person can be ordered to be detained for up to 10 years in subsequent conviction.

In India, 20 States and two Union Territories have either enacted their own legislations or adopted the legislations enacted by other States.

“The State simply cannot fail to do its duty to provide a decent life to its citizens and add insult to injury by arresting, detaining and, if necessary, imprisoning persons who beg in search for essentials of bare survival,” the HC had noted.

The court, however, did not touch the provisions in the Act that deals with penalty for employing or causing persons to solicit or receive alms.

Aviation reforms

In a move to ensure that pilots and cabin crew members get the mandated rest period, the Delhi HC in April directed the Directorate General of Civil Aviation (DGCA) to prescribe a specific flight and duty time limitation (FDTL).

The HC asked the DGCA to strictly implement the provisions under the Aviation Act and Rules with regard to maximum and minimum flying time.

Kerala-based lawyer Yashwanth Shenoy had moved the court claiming that the DGCA was allowing airline operators to stretch the duty hours of pilots under the FDTL, resulting in fatigue.

Overbooking by airlines

In February, the Delhi HC noted that the practice of airlines to ‘overbook’ flights — though recognised by the DGCA — cannot mean it has “the sanction of law”.

Airlines commonly overbook their scheduled flights to reduce possibility of flights departing with unoccupied seats due to passengers with firm bookings not reporting for travel.

As per data from the DGCA, a total of 2,879 passengers were denied boarding by various domestic airlines in December 2017 due to overbooking.

A clause in the Civil Aviation Requirement (CAR), issued by the DGCA, lays down procedure to be followed if airlines are to deny boarding to passengers with confirmed booking due to overbooking of seats.

Territorial Army

Clearing the path for induction of women in the Territorial Army, the Delhi HC in January said any provision that bars women from joining the force was against the fundamental rights provided under the Constitution.

The Territorial Army is an organisation of volunteers who receive military training in order to be mobilised for the country’s defence in case of an emergency.

The HC replaced the words “any person” in Section 6 of the Territorial Army Act, to include both men and women.

Section 6 lays down rules on who is eligible for enrolment in the Territorial Army, which is also known as the second line of defence after the regular army.

“The restriction of enrolment of women contained in the impugned advertisements and the claimed policy is neither reasonable nor rational and has to be quashed,” the High Court had said.

A missed opportunity

The Delhi HC initiated several major reforms in 2018, but there was one missed opportunity.

After a marathon hearing on the contentious issue of whether marital rape should be made an offence, the HC put the issue on the back-burner this year.

The case was being heard at regular intervals while Acting Chief Justice Gita Mittal was heading the two-judge Bench. The case has, however, not been heard since August — when Justice Mittal was appointed as the Chief Justice of Jammu and Kashmir High Court.

During the hearing of the case, the HC had refuted the Delhi government’s submission that striking down an exception in the current rape law would result in the creation of a new offence, marital rape, which is a legislative job.

Noting that 52 countries in the world have criminalised marital rape, the High Court had remarked that the exception in the law — granting immunity to a husband — was “very wide” and gave the husband absolute freedom to do whatever he wanted in a marital bond.

Section 375 of the Indian Penal Code, which defines rape, also states that sexual intercourse by a man with his wife aged 15 years or above is not rape, even if it is without her consent.

In October last year, the Supreme Court increased the age to 18 years.

The Centre had told the HC that criminalising marital rape “may destabilise the institution of marriage” and would become an easy tool for harassing husbands.

The next date of hearing is mid-February next year.

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