Bombay Highcourt stays Mumbai police FIRs against Arnab Goswami observing that no prima facie case was made out against him. The Court orders that no coercive action should be taken against him.

The Bombay High Court on Tuesday granted interim relief to Arnab Goswami, anchor and Chief Editor of Republic TV, by staying the two FIRs filed by Mumbai police against him over alleged communalization of the incidents of Palghar lynching and the gathering of migrant workers at Bandra railway station.

A division bench of Justice Ujjal Bhuyan and Justice Riyaz Chagla observed “prima facie no case was made out against him”.

The bench ordered that no coercive action should be taken against him. 

The bench had reserved orders on the petitions on June 12.

Arnab Goswami was booked under Sections 153, 153 A, 153 B, 295 A, 298, 500, 504, 505(2), 506, 120 B and 117 of the Indian Penal Code.

Senior Advocates Harish Salve and Milind Sathe, appearing for Goswami, had submitted that the FIRs were politically motivated with an attempt to muzzle critical voices against the Maharashtra Government.

Stating that the Maharashtra police had mala fides against Goswami, Salve had submitted :

“”At a time when the country is in lockdown, calling Arnab for investigation should be looked into. A party in power is calling a journalist for investigation because he made an adversarial statement against the leader of a political party. What was he asked, what is the structure of your company ? Who owns Republic TV & Bharat ? What is your wife’s role?What is the relevance of these questions?”

Salve also submitted that a journalist has the right to report about communal incidents.

Salve reiterated that Srivatsa YB and Gaurav Pandhi of the Congress were tweeting details about Arnab’s interrogation from outside while he was still inside NM Joshi Marg police station.

“We have made serious allegations. However strong his comments may have been against the Congress President, but to cross a line & invoke 153A is malicious. When you’re reporting on communal incidents & making a personal allegation of someone being communal, it comes within the Right to Freedom of Expression”, Salve contended.

Senior Advocate Kapil Sibal, appearing for State of Maharashtra, submitted that press freedom under Article 19(1)(a) of the Constitution does not include the right to indulge in communal propaganda.

“A journalist has a right to Freedom of Expression & right to private investigation of an incident. But a journalist does not have a right to declare that a person got killed only because he was a Hindu. What if it turns out to be false after an investigation ?We need to investigate the motive. Why did Arnab assume that the man was killed because he was a Hindu. What is this if not putting one community against the other?”, Sibal had submitted.

As regards the second FIR, relating to gathering of large crowd of migrants at Bandra station, Sibal had submitted :

“Arnab asked : Who caused the congregation of a crowd near a Masjid ?

Why didn’t he ask – Who caused the congregation of a crowd near Bandra station? If Masjid was used just as a statement of fact, why did he twist the question?

So he’s not using Masjid as a matter of fact. A journalist has no right to consider his investigation to be gospel & air it to create disturbance. All this will be investigated. It will be investigated as to why was he doing a series of such shows ? What was his intention?” 

Earlier, the Supreme Court had declined Goswami’s prayer to transfer the investigation from Maharashtra police to the Central Bureue of Investigation. The top court also turned down his prayer to quash the FIR, saying that powers under Article 32 of the Constitution cannot be exercised for such purposes. However, the SC quashed the multiple FIRs filed in various states over the reports, and confined the investigation only to the FIR lodged in Mumbai.

The SC bench comprising Justices D Y Chandrachud and M R Shah also granted him interim protection from arrest, and gave liberty to him to move the Bombay High Court with respect to quashing of FIR.

On June 10, Goswami had to appear before Mumbai police for interrogation for the second time, after the Bombay HC declined to grant him exemption from such appearance.

Delhi Highcourt Extends Time For Filing Objections To Draft Environment Impact Assessment Notification 2020 Till 11th August

The Delhi High Court on Tuesday extended the time period granted by the Central Government for filing objections to the draft Environment Impact Assessment Notification 2020 till August 11.

June 30 was the deadline set by the Ministry of Environment and Forest and Climate Change for the objections.

While taking note of the ambiguity that existed in the notification issued by the Ministry in February, the Division Bench of Chief Justice DN Patel and Justice Prateek Jalan has partially allowed the petition.

‘There was an error apparent on the face of the notification issued by the government wherein the notice period for filing objections was extended to 60 days’, the court said.

Filed by Mr Tongad, the petition challenges the notice period provided in the notification issued by the Environment Ministry on March 23 wherein a notice period has been provided for the public to send their comments and suggestions on the draft EIA policy.

In light of the COVID19 lockdown, an extension notification was passed which had increased the notice period till June 30. However, the Petitioner believes that the said extension is ‘woefully inadequate’ as the COVID cases are still on the rise and restrictions continue to remain in place in major cities.

For instance, the Petitioner has highlighted that the postal services in Delhi and Mumbai are still suspended. As per the Petitioner, this would prevent many people from sending their objections to the concerned Ministry.

While highlighting that the public has a fundamental right to participate and comment upon public policy, the Petitioner has argued that the fact that the draft policy is only available in English, it adversely affects the meaningful participation of the public in the draft policy.

The petition says:

‘Moreover, the notification is largely inaccessible online as it is only in English and has not been posted prominently on the website of the Ministry of Environment, Forests and Climate Change, apart from not having been posted on the websites of various State Pollution Control Boards or any Environment Department websites of any of the States. As a result of this, the members of public have been unable to comment on a substantive notification that completely supersedes and replaces the existing environmental norms.’

Therefore, the Petitioner has asked for a direction to be issued to the concerned Ministry to facilitate a fair and meaningful consultation, the notification needs to be translated into all official vernacular languages as given in the Eighth Schedule to the Constitution, and placed at a prominent position on the MoEF & CC website as well as the websites of the Central and State Pollution Control Board and the Environment Ministries of all the States.

The Petitioner has further argued that the draft policy has multiple features, such as post-facto clearances, reduction in public consultation time, which needs to be properly addressed by three public at large as it seriously affects their rights.

While asking the court to intervene, the Petitioner has said:

‘The present Petition is being filed to protect the rights of the persons of India to a clean environment and human health and their right to community participation guaranteed to them under Article 21 of the Constitution of India, as well as under the provisions of the EP Act, 1986 and the Regulations thereunder.’

Case Title: Vikrant Tongad v. Union of India

Cruelty to wife over her dark complexion attracts Section 498A of the IPC: Calcutta High Court- Read Judgement

Cruelty under section 498A

The Calcutta High Court made this remark while dismissing an appeal challenging the conviction of a man and his parents for causing the death of his wife seven months after the marriage.

In its judgment delivered on June 25, the Calcutta High Court has held that cruelty meted out to a woman after marriage over her dark complexion would attract the penalty under Section 498A of the India Penal Code (IPC) (Mazidul Miah @ Mia & Ors. v. State of West Bengal).

A Division Bench of the Calcutta High Court comprising Justices Sahidullah Munshi and Subhasis Dasgupta said that ill-treatment over a woman’s complexion constitutes the offence of cruelty under Section 498A of the IPC, while deciding on an appeal against conviction of a man and his family for causing the death of his wife in less than a year of her marriage.“Causing cruelty to deceased victim for her black complexion even after her marriage by the in-law’s members would definitely attract Section 498A/34 I.P.C. against the in-law’s members, including accused husband.”Calcutta High Court

The deceased woman had died by hanging just months into her marriage owing to which her husband and his family was convicted by the Trial Court for murder under Section 302 of the IPC and cruelty under Section 498A of the IPC, both read with Section 34 of the IPC.

The death of the victim was not one of dowry death, the Court noted. The prosecution had mounted the case in this matter on the grounds of cruelty highlighting the disaffection of the accused persons towards the deceased woman on account of her dark complexion.

Just seven months into the marriage between the deceased woman and her accused husband, solemnized back in 1997, the deceased was found dead under unnatural circumstances in her matrimonial home. The Court also noted that in her matrimonial home, the victim had faced cruelty and ill-treatment on account of her dark complexion. As noted in its judgment,

“… deceased victim was put to suffer cruelty, oppression and ill-treatment by her in-law’s members, including her accused husband for her black complexion. She was not loved by family members of in-law’s house, and frequently abused her with a threat that accused husband would be given marriage shortly after repealing her marriage and driving her out of the matrimonial home.”

The victim was made to stay in the cow-shed just a few days after moving to her matrimonial home and was also often beaten by her husband in what was physical torture, the Court said while recording the factual matrix of the case. The Court said, “Accused husband beat her physically with cycle chain while causing physical torture upon the deceased victim. She was attempted to be killed.”

The deceased victim had informed her maternal family of the entire ordeal she faced at her matrimonial home. However, she was persuaded by her parents to bear with the conduct of her in-laws and husband and to return to her matrimonial home. Ultimately, the family was informed of the victim’s death by hanging by a rope.

The case of the prosecution was questioned on the grounds that it was not a believable case. The accused-appellants said that it is not believable that a girl’s family would not inform the Police if she were being ill-treated. However, considering not only the financial condition of the parents of the deceased as well as the normal conduct in our society, Court said that immediate lodging of the complaint without considering conciliation first is not an invariable rule.

“… this cannot be invariable rule that parent would immediately lodge a complaint immediately after knowing commission of cruelty upon their daughter, ignoring possibilty of reconciliation mutually. It is ordinary conduct that parents would prefer to persuade their daughter ignoring the torture, and the cruelty for the future benefit of their daughter.”

Calcutta High Court said.

Further, the non-production of the offending weapon was also invoked by the defence to argue that the prosecution’s case was improbable and that the death was suicidal.

The High Court, however, relied on the autopsy report of the surgeon which revealed the cause of death of the victim to be by strangulation and asserted that death was homicidal, not suicidal. After due regard to all aspects, the Court said,

“The established fact is that there was an unnatural death of deceased held within seven months of her marriage. Such unnatural death was admittedly held in the in-law’s house of deceased victim. There 22 was sufficient evidence to show that the victim received oppression, ill-treatment, torture, cruelty in her in-law’s house by her in-law’s members for her black complexion.”

The telephone chord used to cause the victim’s death was seized and examined by the autopsy surgeon and the same aspect was unchallenged in cross-examination. As such, the High Court said that the mere non production of the offending weapon is not enough to disbelieve the testimony of the autopsy surgeon. As such, the Court held that the death cannot be ruled to be suicidal.

Noting that the disaffection and dissatisfaction over the victim’s complexion was the motive, the Court said that the facts and circumstances pointed at the husband’s guilt under Section 302 of the IPC.

As regards the other accused, since the victim’s father-in-law had passed away during the proceedings, the appeal on his behalf stood abated. Based on the circumstantial evidence to show mother-in-law’s conduct, her conviction was modified to remove charges of murder. The Court, however, sustained her conviction under Section 498A of the IPC for cruelty.

CRA No. 247 of 2006
Mazidul Miah @ Mia & Ors.
Vs.
State of West Bengal

Heard on : 03.01.2020, 27.01.2020, 5.02.2020, 02.03.2020
Judgment on : 25.06.2020

Government Bans 59 mobile apps which are prejudicial to sovereignty and integrity of India, defence of India, security of state and public order

Posted On: 29 JUN 2020 8:47PM by PIB Delhi

The Ministry of Information Technology, invoking it’s power under section 69A of the Information Technology Act read with the relevant provisions of the Information Technology (Procedure and Safeguards for Blocking of Access of Information by Public) Rules 2009 and in view of the emergent nature of threats has decided to block 59 apps ( see Appendix) since in view of information available they are engaged in activities which is prejudicial to sovereignty and integrity of India, defence of India, security of state and public order.

Over the last few years, India has emerged as a leading innovator when it comes to technological advancements and a primary market in the digital space.

At the same time, there have been raging concerns on aspects relating to data security and safeguarding the privacy of 130 crore Indians. It has been noted recently that such concerns also pose a threat to sovereignty and security of our country. The Ministry of Information Technology has received many complaints from various sources including several reports about misuse of some mobile apps available on Android and iOS platforms for stealing and surreptitiously transmitting users’ data in an unauthorized manner to servers which have locations outside India. The compilation of these data, its mining and profiling by elements hostile to national security and defence of India, which ultimately impinges upon the sovereignty and integrity of India, is a matter of very deep and immediate concern which requires emergency measures.

The Indian Cyber Crime Coordination Centre, Ministry of Home Affairs has also sent an exhaustive recommendation for blocking these malicious apps. This Ministry has also received many representations raising concerns from citizens regarding security of data and risk to privacy relating to operation of certain apps. The Computer Emergency Response Team (CERT-IN) has also received many representations from citizens regarding security of data and breach of privacy impacting upon public order issues. Likewise, there have been similar bipartisan concerns, flagged by various public representatives, both outside and inside the Parliament of India. There has been a strong chorus in the public space to take strict action against Apps that harm India’s sovereignty as well as the privacy of our citizens.

On the basis of these and upon receiving of recent credible inputs that such Apps pose threat to sovereignty and integrity of India, the Government of India has decided to disallow the usage of certain Apps, used in both mobile and non-mobile Internet enabled devices. These apps are listed in the attached appendix.

This move will safeguard the interests of crores of Indian mobile and internet users. This decision is a targeted move to ensure safety and sovereignty of Indian cyberspace.

Appendix

  1. TikTok
  2. Shareit
  3. Kwai
  4. UC Browser
  5. Baidu map
  6. Shein
  7. Clash of Kings
  8. DU battery saver
  9. Helo
  10. Likee
  11. YouCam makeup
  12. Mi Community
  13. CM Browers
  14. Virus Cleaner
  15. APUS Browser
  16. ROMWE
  17. Club Factory
  18. Newsdog
  19. Beutry Plus
  20. WeChat
  21. UC News
  22. QQ Mail
  23. Weibo
  24. Xender
  25. QQ Music
  26. QQ Newsfeed
  27. Bigo Live
  28. SelfieCity
  29. Mail Master
  30. Parallel Space
  1. Mi Video Call – Xiaomi
  2. WeSync
  3. ES File Explorer
  4. Viva Video – QU Video Inc
  5. Meitu
  6. Vigo Video
  7. New Video Status
  8. DU Recorder
  9. Vault- Hide
  10. Cache Cleaner DU App studio
  11. DU Cleaner
  12. DU Browser
  13. Hago Play With New Friends
  14. Cam Scanner
  15. Clean Master – Cheetah Mobile
  16. Wonder Camera
  17. Photo Wonder
  18. QQ Player
  19. We Meet
  20. Sweet Selfie
  21. Baidu Translate
  22. Vmate
  23. QQ International
  24. QQ Security Center
  25. QQ Launcher
  26. U Video
  27. V fly Status Video
  28. Mobile Legends
  29. DU Privacy

Madras Highcourt Order’s To Preserve Clue Materials From Sathankulam Police Station, Leaves Transfer Of Investigation To CBI- Custodial death- [Read Order]

In connection with the infamous custodial death case of a father-son duo, the Madras High Court on Monday directed the District Collector, Tuticorin, to depute Revenue Officers to the Sathankulam Police Station, for the purpose of preserving the clue materials.

The Division Bench at the Madurai Seat of the High Court was motivated to take this action when the Principal District Judge, Tuticorin, who is closely monitoring the case, informed that the police personnel in the Sathankulam Police Station are not cooperating with the Judicial Magistrate No.I, Kovilpatti, in conducting the enquiry under Section 176(1) (1-A), Cr.P.C., for collecting clue materials.”In this regard, we also direct the Assistant Director of Mobile Forensic Science Laboratory, Tuticorin, to immediately go to the Sathankulam Police Station, to collect the clue materials and assist the learned Judicial Magistrate No.I, Kovilpatti. If necessary, a team of forensic science experts from the Regional Forensic Science Laboratory, Tirunelveli, may also be requisitioned”, ordered the bench.The Madras High Court on Monday was also informed that the State Government is intending to transfer the investigation of the Sathankulam case to the Central Bureau of Investigation, after getting formal nod of the Court in regard thereto, inasmuch as, the Court has taken up the matter suo motu and is closely monitoring it.”Though we appreciate the deference shown to this Court by the State Government, we make it clear that, to transfer or not to transfer the case to the C.B.I., is the policy decision of the State Government and such a transfer is governed by the provisions of the Delhi Special Police Establishment Act, 1946″, said the division bench.

However, the bench noted that since there are certain procedural formalities for effecting transfer of the case in the event of the State Government issuing necessary Government Order, which may consume a reasonable time, the court issued the following directions, on the premise that the case is likely to be transferred to the C.B.I.:

i.The Registrar (Judicial), Madurai Bench of Madras High Court, shall take a photocopy of the preliminary post-mortem certificates and certify them and keep them in safe custody and send the original post-mortem certificates in a sealed cover to the learned Chief Judicial Magistrate, Tuticorin, who, in turn, shall hand over the same to the Investigating Officer of the C.B.I. The post-mortem doctors are awaiting the Chemical Analysis, Histopathological examination and Microbiological examination reports. Only upon receipt of those reports, can the final opinion be given. Therefore, the Dean, Tirunelveli Medical College, shall send the final opinion, to the learned Chief Judicial Magistrate, Tuticorin, who, in turn, shall hand over the same to the Investigating Officer of the C.B.I. A copy of the final opinion shall also be sent to this Court in a sealed cover. The Director, Tamil Nadu Forensic Sciences Laboratory, Chennai, is directed to give top priority to the examination of the materials sent by the post-mortem doctors, so that they can give their final opinion at the earliest.

ii.The learned Judicial Magistrate No.I, Kovilpatti, shall send a copy of his report to this Court in a sealed cover and keep the original report with him in safe custody and hand over the same to the Investigating Officer of the C.B.I.

iii.The Deputy Superintendent of Police, Kovilpatti Range, shall hand over the Case Diaries in Kovilpatti East P.S. Cr. Nos.649 and 650 of 2020, to the Chief Judicial Magistrate, Tuticorin, for safe custody, who, in turn, shall hand over the same to the Investigating Officer of the C.B.I.

iv.Though the accused in Sathankulam P.S.Cr. No.312 of 2020, viz., Jayaraj and Bennicks, are no more, the Superintendent of Police, Tuticorin District, shall hand over the Case Diary and other related records in Sathankulam P.S. Cr. No.312 of 2020 to the Chief Judicial Magistrate, Tuticorin, who, in turn, shall hand over the same to the Investigating Officer of the C.B.I., as those records will aid the C.B.I. Investigation.

Finally, coming to the suggestion put forth by this Court in the order of June 24 qua addressing the psychological needs of the policemen and their family members, the bench noted that the State Government had already launched a scheme called “Police Wellbeing Programme” in collaboration with NIMHANS, Bangalore,and has allocated a sum of Rs.10 crores towards that scheme.

The bench required the Additional Advocate General to ascertain as to whether the said programme is being continued or not and apprise us of it.

Telangana Highcourt inaugurates “Mobile Video Conferencing” facility to help lawyers who find difficulties to access virtual courts due to technicalities. The mobile van will go to remote places of the town to help advocates in the vicinity.

The mobile van will go to the remote places in the State, so that advocates residing in that vicinity can make use of the mobile video conference facility and address the virtual court.

With a view to aid lawyers who face difficulties in participating in the video conference hearings before Court amid the COVID-19 pandemic, the Telangana High Court today inaugurated a Mobile Video Conference Facility.

The mobile van will go to the remote places in the State, so that advocates residing in that vicinity can make use of the mobile video conference facility and address the virtual court.”In order to facilitate Advocates who do not have access to virtual courts from their respective homes, the concept of Mobile Video Conference Facility has been introduced by the High Court. “

Press Release

The High Court rolled out the initiative in view of concerns by certain lawyers that it was difficult to attend the virtual court proceedings due to inadequate facilities and the court’s remote functioning amid the COVID-19 pandemic in Telangana.

Lawyers using the Mobile Video Conferencing facility
Lawyers using the Mobile Video Conferencing facilities

A mobile van with the required infrastructure for the “Mobile Video Conference Facility” was provided by the District Collector.

The initiative was digitally inaugurated on Monday morning by Chief Justice RS Chauhan in the presence of P Naveen Rao, Administrative Judge of the Warangal District.

Chief Justice RS Chauhan during the e-inaugural ceremony
Press note

Refusal To Wear ‘Sakha & Sindoor’ Signify A Woman’s Refusal To Accept Her Marriage: Gauhati Highcourt Allows Divorce Petition- (Read Order)

While allowing the matrimonial appeal preferred by a husband against the order of a Family Court dismissing his application for divorce, the Gauhati High Court has held inter alia, that refusal to wear ‘sakha and sindoor’ are indicative of the wife’s refusal to accept her marriage.

The bench of Chief Justice Ajai Lamba and Justice Soumitra Saikia observed that under the custom of Hindu Marriage, a lady who has entered into marriage according to Hindu rituals and customs, her refusal to wear ‘sakha and sindoor’ will project her to be unmarried and/or signify her refusal to accept the marriage.

“Under the custom of Hindu Marriage, a lady who has entered into marriage according to Hindu rituals and customs, and which has not been denied by the respondent in her evidence, her refusal to wear ‘sakha and sindoor’ will project her to be unmarried and/or signify her refusal to accept the marriage with the appellant”, the bench observed. 

In the present case, the bench observed, the Respondent-wife had categorically stated during her cross-examination, “I am not wearing/putting sindoor right now because I don’t consider him as my husband.

Under these circumstances the bench observed that the Family Court had “erred in evaluating the evidence in the proper perspective“. It observed,

Such categorical stand of the respondent points to the clear intention of the respondent that she is unwilling to continue her conjugal life with the appellant. Under such circumstances compelling the appellant husband to continue to be in matrimony with the respondent wife may be construed to be harassment inflicted by the respondent upon the appellant and his family members.

Refusal to live with in-laws amounts to cruelty

Inter alia the bench observed that the Respondent-wife had refused to reside with her in-laws. She had in fact entered into an agreement whereby the appellant husband was required to provide “separate accommodation” to her in a rented house, away from the matrimonial house.

Such act of forcing a son (the appellant) to live away from his family, the court said, may be construed as an act of cruelty on part of the Respondent-wife.

The bench observed that children are mandatorily required to maintain their parents under the Maintenance and Welfare of Parents and Senior Citizens Act, 2007.

Under the circumstances, the bench said,

the Family Court completely ignored this fact brought out during the evidence that the respondent compelled and prevented the appellant from performing his statutory duties towards his aged mother under the provisions of the 2007 Act. Such evidence is sufficient to be construed as an act of cruelty as the non-compliance/non-adherence to the provisions of the 2007 Act has criminal consequences leading to punishment or imprisonment as well as fine.

Filing of unsubstantiated criminal case amounts to cruelty

The High Court reiterated that the act of lodging criminal cases on unsubstantiated allegations against the husband and/or the husband’s family members amounts to cruelty.

In the present case, the Respondent-wife had filed three criminal complaints against the appellant and his family, one of which had been dismissed.

Thus relying on the Supreme Court’s verdict in Rani Narasimha Sastri v. Rani Suneela Rani, 2019 SCC Online SC 1595, the bench observed,

filing of criminal cases like case under Sections 498(A) IPC etc. against the husband and the family members and which are subsequently dismissed/rejected by the Family Court, is sufficient to be construed as an act of cruelty by the wife…. it is evident that there will be no purpose served to keep the marriage alive as there was no matrimonial harmony between the parties to be reached.

Accordingly, the appeal was allowed and a decree of divorce was passed.

Delhi High Court and subordinate courts suspended Physical functioning till 15th July, 2020- (Covid-19)

Physical functioning of the Delhi High Court and its subordinate courts will remain suspended till July 15.

A decision to this effect was taken by the Administrative and General Supervision Committee of High Court today.

All the pending matters listed before the High Court from July 1 to July 15 stand adjourned to dates in August and September.

As per an Office Order issued on June 13, the suspended functioning of the High Court and other courts was due to end on June 30.

The High Court, as well as the subrodinate courts, have been hearing urgent matters through video conferencing.

The arrangements qua mentioning and hearing of urgent matters and disposal of certain categories of final hearing matters by the High Court through videoconferencing shall continue as before.

Supreme Court Asks ICAI To Be Flexible On Chartered Accountant Exam ‘Opt Out’ Option; ICAI To Modify Notification

Supreme court of India


The bench suggested that the option to ‘opt out’ must be kept open till last exam.

The Supreme Court on Monday stressed that the Institute of Chartered Accountants of India (ICAI) should be flexible with the ‘opt-out’ scheme for the CA examinations to be held between July 29 & August 16, considering the COVID-19 pandemic situation.

A bench comprising Justices AM Khanwilkar, Dinesh Maheshwari & Sanjiv Khanna asked the ICAI to come out with a fresh notification in this regard. The matter will be next considered by the bench on July 2.

The bench was hearing the petition filed by the India Wide Parents Association challenging the “opt out scheme”, and seeking more centres for CA exam. The Petitioner, through Advocate Alakh Alok Srivastavan, submitted that the ICAI announced it will conduct the May 2020 cycle Chartered Accountants examination between July 29 to August 16.

On July 15, the ICAI notified that the students can avail an ‘opt-out’ option, as per which their attempt will be treated as cancelled, and will be carried forward to the exams scheduled in November. The deadline for opt-out option is tomorrow, June 30. This was challenged as highly discriminatory and arbitrary by the petitioner. 

During Monday’s hearing, the bench batted for flexibility in the scheme.

The bench said that the situation due to pandemic was not “static” and was “dynamic”. So, the option for opt-out must be kept open till last exam.

The ICAI told the bench that the limited window of choosing to opt-out was kept to have a sense of certainty as regards the number of students taking the exam.  Senior Advocate Ramji Srinivasan, ICAI’s counsel, said that 53,000 students have already opted out from taking the CAexam to be held in July-August.

But the bench pointed out the pandemic situation was constantly changing, and containment zones were always shifting.

“Those who have not opted out and are unable to take exam due to any exigency, let those students have the same benefit as someone who has opted out”, Justice Khanwilar suggested.

“If someone does not appear for the CA exam, treat them as opted out. As simple as that. Assume that it is COVID-19 related”, the judge added.

“You have to make a provision then that if a student passes the exam in November, you have to say that it means they have passed the exam in July”, the bench said.

The bench made two suggestions :

  1. Opting out shall remain active till last paper.
  2. Guidelines issued by MHA for conduct of CBSE exams should be adopted. 

“Don’t make taking of any CA exam difficult for students. Don’t make this semester-based opting out. You (ICAI) are a professional body. Take care of your students”, the bench told Senior Advocate Ramji Srinivasan, counsel for ICAI.

“Once the option of opting out is kept open till last paper, no other logistic concern would be relevant”, the bench remarked.

The bench also said that the the option to change CA exam centre needs to be open till the last week before examination date.

“The change of centre  should be open for all till the end. Till the last week, you need to be flexible, you cannot be rigid”, the bench said.

Srinivasan told the bench that a modified notification will be issued addressing the concerns raised by the bench.

The bench however was not appreciative of the petitioner’s plea for free transportation facilities to exam centres.

“Do you expect a bus to go to every aspirant’s residence to pick them up?”, the bench asked Advocate Alakh Alok Srivastava, petitioner’s counsel.

Filed by the President of India Wide Parents Association, the plea states that said “Opt-Out” option discriminates against students on account of the fact that some students who are living in remote areas of the country or are currently in containment zones are bound to choose the “opt-out” option and are thus slated to lose one “one precious examination attempt” of taking the said examination.

In order to ensure that there is at least one Examination Centre in every district of India so that maximum students can take the exams, the plea prays for increasing the number of Examination Centres. as there are only 259 centres in India and 5 Centres overseas, whereas there are 739 districts in India.

“….it is apparent from the above that the Respondent No.1 ICAI is only conducting the aforesaid Examinations in about 30% districts in India. Meaning thereby that the students/ aspirants living in other 70% districts of India, would be required to travel from their homes for long distances, to other districts, in order to appear in the aforesaid Examinations, which will put their lives in immense threat of deadly pandemic of COVID-19” – Excerpt of Plea

This, the plea states would ensure that that the risk of contracting infection is minimised as students would not have to travel long distances to partake the examinations.

Additionally, the petitioner prays for free transportation and free accommodation for those students who are not in close proximity to their respective Examination Centres in order to protect them from “unnecessary harassment” and for “e-Admit Cards to be issued to the captioned students, as E-passes for free movement of such students in containment/ red zones during examinations”.

UMoreover, the petitioner is praying for stand-by Examination centre for those centres which are “likely to go into containment zones”.