CASE NO: 1

ALLOWING 'KASHMIRI MIGRANT' RETIRED GOVT. EMPLOYEES

TO RETAIN GOVT. ACCOMMODATION FOR INDEFINITE LONG
PERIOD UNCONSTITUTIONAL: SUPREME COURT

OBJECTIVE:

The Supreme Court held that a government employee who is a Kashmiri Migrant
cannot retain Government accommodation for a period exceeding three years.

The Court held that the Office Memorandum allowing the retired Government
employees who are Kashmiri Migrants to retain Government accommodation
for indefinite long period is unconstitutional for being as being totally
arbitrary and discriminatory.

There cannot be any justification on the basis of social or economic criteria to

allow the Kashmiri Migrants to stay in Government accommodation for indefinite
long period, the bench of Justices Hemant Gupta and AS Bopanna observed. The
bench observed that recently, the court had set aside a Punjab and Haryana High
Court order allowing a retired Intelligence Bureau Officer to retain Government
accommodation.

FACTS:

In this case, the court was considering some miscellaneous applications

seeking recall of certain orders passed by the Court. The court noticed an
office memorandum allowing government accommodation to the retired
Government employees who are Kashmiri Migrants. In this regard, the court
made the following observations:

Classification discriminatory

The compassion shown to Kashmiri Migrants has to be balanced with the

expectations of the serving officers to discharge their duties effectively. The
Government accommodation is meant for serving officers and cannot be
taken as a recourse to stay in Government accommodation for the life time of
the Government servants or his/her spouse...We find that the Office
Memorandum allowing government accommodation to the retired Government
employees who are Kashmiri Migrants cannot meet the touchstone of Article
14 of the Constitution of India. The Government houses/flats are meant for
serving Government employees. Post retirement, the government employees
including Kashmiri Migrants are granted pensionary benefits including monthly
pension. The classification made in favour of Government employees who were
Kashmiri Migrants stands on the same footing as that of other Government
employees or public figures. There cannot be any justification on the basis of
social or economic criteria to allow the Kashmiri Migrants to stay in Government
accommodation for indefinite long period.

Totally arbitrary and discriminatory

To say that they would return to the Valley when the situation will improve is an
open-ended statement capable of being interpreted in different ways. The
satisfaction of improvement of situation would be widely different by the
erstwhile Government employees and the State. But in no case it can be
countenanced that the former Government employee may be a Kashmiri Migrant,
is entitled to stay in a government accommodation for an indefinite period. Thus,
we are unable to uphold the Office Memorandum and strike it down as being
totally arbitrary and discriminatory.

The court noted that in Para 2(ii) of the Scheme, Kashmiri Pandits were to be
accommodated in Delhi for first five years starting from the date of their retirement
and thereafter be shifted to National Capital Region.

Thus, we find it reasonable if Kashmiri Migrants are allowed government

accommodation for a period of three years from the date of retirement so as to
make alternative arrangements within such period. If an alternative
accommodation is not available for them at their instance, they are at liberty to
move to the transit accommodation or to avail cash amount in lieu of transit
accommodation. Thus, a government employee who is a Kashmiri Migrant
would not be entitled to retain Government accommodation for a period
exceeding three years, may be in Delhi or in the National Capital Region or
for that matter anywhere in the country.

COOLING OFF PERIOD:

 The three-years period can also be considered as cooling off period for the officers
who were in active intelligence work so that they can resume normal life but the
excuse of once working for intelligence agency is not a valid ground to occupy the
Government accommodation for indefinite period.

RELATED ARTICLES:
ARTICLE 14 OF THE CONSTITUTION OF INDIA 1949
Equality before law The State shall not deny to any person equality before the
law or the equal protection of the laws within the territory of India Prohibition of
discrimination on grounds of religion, race, caste, sex or place of birth

COOLING OFF PERIOD:

A cooling-off period is an agreed period of time during which two sides with
opposing views try to resolve a dispute before taking any serious action.

CASE NO: 2

CUSTODY OF CHILD OBTAINED BY PLAYING FRAUD ON COURT

LIABLE TO BE DECLARED VOID AB INITIO: SUPREME COURT

OBJECTIVE:

The Supreme Court has recalled an order granting custody of a child to a Kenyan
citizen of Indian origin after finding that he had played fraud on the court and had
approached it with "unclean hands" by suppressing material facts (Smriti Madan
Kansangra v. Perry Kansangra). The Court declared its earlier order
granting custody to the father who played fraud as "illegal" and "ab initio
void".

FACTS:

Observing that the party has defied the conditions imposed by the Court for taking
the child to Kenya after securing his custody, the Court directed the CBI to initiate
proceedings to secure and entrust the custody of the child to his mother. The
Court also asked the Centre and the Indian mission in Kenya to help the
mother and ordered registration of a suo motu contempt case against Perry
Kansagra, the father of the child. The Court has directed Perry Kansagra's
physical presence before it on November 16 and asked the registry to pay Rs 25
lakh as litigation cost, from the amount deposited earlier by him with it, to his
wife.

A bench comprising Justices Uday Umesh Lalit, Ajay Rastogi and Hemant
Gupta observed in the judgment as follows:

"It is fundamental that a party approaching the Court must come with clean hands,
more so in child custody matters. Any fraudulent conduct based on which the
custody of a minor is obtained under the orders of the Court would negate
and nullify the element of the trust reposed by the Court in the concerned
person. Wherever the custody of a minor is a matter of dispute between the parents
or the concerned parties, the primary custody of the minor, in parens patriae
jurisdiction, is with the Court which may then hand over the custody to the person
who in the eyes of the Court, would be the most suitable person. Any action
initiated to obtain such custody from the Court with fraudulent conduct and design
would be a fraud on the process of the Court".

BACKGROUND FACTS

In October 2020, a 3-judge bench of the Supreme Court had held by 2:1 majority
that the Indian-origin father, who was then residing at Kenya, was entitled to the
custody of the child. While Justices UU Lalit and Indu Malhotra (since retired)
gave the custody of the son to the father, Justice Hemant Gupta dissented to hold
that the mother was entitled to the custody. The majority imposed a condition
that the father should obtain a "mirror order" from the corresponding
Kenyan court within two weeks to take the child to Kenya. Later, the mother
filed an application stating that the father got custody by allegedly giving a
forged or wrong mirror order from the Kenyan High Court. It was also alleged
that he not only refused to obey the directions granting visitation or meeting rights
to the mother but also moved the Kenyan court for declaration of invalidity of
Indian jurisdiction and/or laws and/or judgments denying, violating and/or
threatening to infringe the fundamental rights of the Minor through purported and
unenforceable judgments and orders relating to the Minor under Articles 23(3) (d)
of the Constitution of Kenya.

The Supreme Court found that at every juncture solemn undertakings were given
by Perry to the Court were not only flagrantly violated but a stand is now taken
challenging the very jurisdiction of the Indian Courts, despite having submitted
himself to the jurisdiction of the Indian Courts.

"Such conduct, prima facie, can certainly be said to be contumacious calling

for an action in contempt jurisdiction. Moreover, the non-disclosure of
material facts by Perry at the relevant junctures also shows that he
approached the Indian Courts with unclean hands", said the bench.

"These developments not only show the defiant and contumacious posture now
adopted by Perry but prima facie support the submissions of the mother made in
Interim Applications … There appears to be concrete material and reason to
believe that it was a well-planned conspiracy on part of Perry to persuade this
Court to pass orders in his favour and allow him the custody of the son and then
turn around and defy the Orders of this Court", the bench observed in the
judgment.

THE FOLLOWING DIRECTIONS WERE ISSUED:

The Central Bureau of Investigation (CBI), New Delhi through its Director is
directed to initiate appropriate proceedings by registering criminal proceedings
against Perry and to secure and entrust the custody of Aditya to Smriti, it said. The
Secretary, Ministry of External Affairs, Government of India, New Delhi, and
the Indian Embassy in Kenya are directed to ensure that all possible
assistance and logistical support is extended to the mother in securing the
custody of the son, it said. The Guardianship Petition filed by Perry in District
Court, Saket for permanent custody of the son, and the resultant proceedings
arising therefrom in the High Court are dismissed, it said.

The orders granting custody having been recalled, the custody of the son with
Perry is declared to be illegal and ab initio void.
Issue notice to Perry as to why proceedings in contempt jurisdiction are not
initiated against him for having violated the solemn undertakings given to this
Court, returnable on 16th November 2021. The Registry is directed to register
Suo Motu Contempt Case and proceed accordingly, it said.

From and out of the amount of Rs.1 crore deposited by Perry in this Court, at this
stage, an amount of Rs.25 lakhs be handed over to the mother towards legal
expenses incurred or required to be incurred hereafter. Rest of the money shall
continue to be kept in deposit with the Registry till further orders.

RELATED ARTICLES:

Suo Motu case: This means they take up cases by their own notice, without any
petition being filed, or interest being brought before them. The Courts have
justified this power under Articles 32 and 226 of the Constitution of India.

A void ab initio agreement is Latin for "void from the beginning." This means that
legally, a contract was void as soon as it was created. The parties of the contract
are not legally related based on what was written in the agreement because the
agreement in question was never valid.

CASE NO: 3

IF ARTICLE 21A IS TO BECOME A REALITY, NEEDS OF

UNDERPRIVILEGED CHILDREN TO RECEIVE ONLINE EDUCATION
CANNOT BE DENIED: SUPREME COURT

OBJECTIVE:

The Supreme Court observed that the needs of underprivileged students to

receive online education must be protected to ensure that the right to
education under Article 21A of the Constitution becomes a reality.

FACTS:
"If Article 21A is to become a reality, the needs of children from the
underprivileged section to receive online education cannot be denied", the Court
observed in an order.

The order was passed while issuing notice in a petition filed by 'Action
Committee Unaided Recognized Private Schools' against a judgment of the
Delhi High Court which directed the school managements to provide fee
gadgets and internet facilities to students of Economically Weaker
Sections(EWS) and Disadvantaged Groups(DG) to access online education.
The High Court had directed the Delhi Government to reimburse the costs to
private schools.

While tagging the petition with an earlier petition filed by the Delhi Government
against the same judgment, the Supreme Court directed that it will be necessary for
the Delhi government to come out with the plan and place the same before the
court for the achievement of the salutary object and purpose of the RTE Act.

The Court added that the government of India shall also engage with the state
governments on this aspect in view of its concurrent responsibility for
providing funds under the Act.

We expect the central government and state governments to take up the matter in
close coordination on an immediate basis and come out with a realistic and lasting
solution", said the court.

THE BENCH NOTED IN ITS ORDER AS FOLLOWS:

"The division bench of the High Court of Delhi, by its judgment of September 18,
2020 impugned in this SLP, has dealt with the matter which is of crucial
importance to the future of young children, particularly those belonging to the
economically weaker sections and disadvantaged groups, in terms of education in
private unaided/government schools. The issue before the High Court inter-alia
pertains to the need to ensure that the 25% DG and EWS students should
have the necessary wherewithal to ensure they are on an equal platform
during the course of the pandemic when schools across the country were
pursuing online instruction."
"The Delhi High Court directed that once synchronous, face to face, real-time
education as the mode of imparting education has been selected, the private
unaided and government schools, in view of sections 3(2) and 12(1) (c) of the
RTE Act, must supply gadgets and equipment of optimum configuration and
internet package to the DG and EWS students free of cost, subject to the
reimbursement from the state in view of section 12(2). The judgment of the
Delhi High Court was challenged by the Delhi government and a notice was issued
thereon on February 10, 2021 by a bench headed by the Chief Justice of India and
the operation of the Delhi High Court order was also stayed. The present SLP is
by the management, the Action Committee of Unaided Recognised Private
Schools. Since the petition filed earlier by the Delhi government is also
pending, we issue notice herein and tag this present SLP with the earlier
petition."

"The issue raised here needs early resolution even as there would be a gradual
reopening of schools in view of the receding curve of the pandemic. However, the
need to provide adequate computer-based equipment together with access to online
facilities for the EWS/DG children is of utmost importance. In the pandemic, as
schools increasingly turned to online education to avoid exposure to young
children, the digital divide produced stark consequences. The EWS/DG children
suffer the consequences of not fully pursuing education or even having to drop out
because of Lack of accessibility to the internet and computers. The management of
unaided recognised schools have come to the court with the plea that the Delhi
High Court while directing them to bear the cost of providing equipment and
internet package has left them to seek reimbursement from the state government.
This action itself requires requisite resources. At the same time, the needs of young
children cannot be ignored. The solution has to be devised at all levels of the
government for adequate facilities across the social strata so that access to
education is not denied to those who lack the resources. Otherwise, the purpose of
merging the EWS with other students in unaided schools under the RTE stands
defeated. If Article 21A is to become a reality, the needs of children from the
underprivileged section to receive online education cannot be denied",
observed the bench.

COURT’S DECISION:
In addition to the aforesaid directions to the Delhi government and the central
government, the bench also required that the Supreme Court registry may seek the
necessary administrative direction of the Chief Justice of India so that the earlier
SLP and the instant petition can be listed together at the earliest date before the
appropriate bench with a view "to arrive at a practical and workable solution
for the youngest citizens of India who are entitled to free and compulsory
education between the ages of 6 and 14"

The bench also clarified that the instant proceedings cover not just the unaided
private schools but also the government and aided schools.

RELATED ARTICLES:

ARTICLE 21 A OF THE INDIAN CONSTITUTION:

The State shall provide free and compulsory education to all children of the age of
six to fourteen years in such manner as the State may, by law, determine.

ARTICLE 45 OF THE INDIAN CONSTITUTION:

Provision for early childhood care and education to children below the age of six
years. [The State shall endeavours to provide early childhood care and education
for all children until they complete the age of six years.]

Special Leave Petitions in Indian Judicial System:

“Special leave petition” or SLP hold a prime place in the Indian judicial system. It
provides the aggrieved party a special permission to be heard in Apex court in
appeal against any judgment or order of any Court/tribunal in the territory of India.