JUSTICE HEMANT GUPTA
Author: Deepali Jain, VIPS
Hemant Gupta is a judge of Supreme Court of India. Also was former Chief Justice of Madhya Pradesh High court.
He is supposed to retire on 16 October 2022.
Enrolled as an advocate on July 1980 and started practice in the District Court of Chandigarh. He entered in the High Court Of Punjab and Haryana. He also worked on various civil, labor, company and constitutional matters. Appointed as Additional Advocate General of Punjab in 1997.
After being transferred to Patna High Court on February 2016 he took over the charge of acting chief justice Patna High Court.
He was also as the Chief Justice of Madhya Pradesh High Court and finally became Justice of Supreme Court in November 2018.
Dying declaration: two accused Shahid and Shamim were accused of raping an 18-year-old girl. Even though the girl committed suicide with a note stating that no one is responsible for her death. The bench pronounced the two with regress punishment. “In the suicide note when the prosecutrix has tried to convey that the accused were hungry (for sex) and that she became their food (victim), it clearly indicates that she was violated and that she did not want to live the life of disgrace. The entire reading of the dying declaration does not absolve the accused though she said that they be not punished. Such suicide note is to be treated as dying declaration and is admissible under Section 32 of the Evidence Act, 1872,” the court said.
Further stressing on admissibility of suicide note as dying declaration, the bench said: “The argument that the suicide note does not name the accused, is of no consequence, as the presence of the victim with the accused at the place of occurrence is proved from the statement of Kashi Singh (PW-1), Kishan Singh (PW-4) and also Manoj Sharma (PW-14), who recorded the first information report. The suicide note has to be read as a whole and not a line can be picked up from out of context. She is referring to the accused as she is the one who has taken lift in the car and that she cannot take disgrace. The disgrace is the violation of her person.”
The bench then convicted the accused under Section 376(2) (g) of the IPC and sentenced them to undergo imprisonment for life.
Right to education act: ‘Not for teachers rather right for the students.’ Guest teachers filed the writ petition against the government policies and shifting of the teachers under RTE act. And the bench rejected the same.“We have to balance the right of teachers such as the petitioners and the students who are taught by the teachers engaged as Guest Teachers. The right to education under the Right to Education Act is not to protect the teachers but to grant education to the students. The primary objective is that the child should study. If he is to study, he is entitled to the best possible teacher to teach him. Therefore, the candidates, who are not able to secure an appointment on the basis of comparative merit out of over 2,00,000 aspirants, cannot claim any right to continue as Guest Teachers. Therefore, if 25% of Guest Teachers are not able to seek appointment despite there being transparent, non-discriminatory criteria framed by the State Government, it cannot be said that the action of the State Government is not justified,” the court said.
Rejecting their contentions against ‘shifting policy’, the bench said: “The argument that the Guest Teachers are being shifted from one school to another school again does not warrant any consideration. Each Guest Teacher has been given the option to choose 20 schools and also to see his merit position in each school. The choice of school cannot be said to affect any right of the petitioners. The school-wise merit is prepared on the basis of scorecard generated on the basis of qualifications of the candidates. The merit is based upon objective criteria excluding any subjectivity. There is no manual intervention to prepare scorecard, which is based upon the eligibility qualification of the teachers. Therefore, if the petitioners are not meritorious to find merit in the school in which they were teaching, is not a ground to nullify the entire process of engaging almost 70,000 Guest Teachers.”
Total prohibition of plastic bags: rejecting the writ petition of total prohibition of plastic bags, the Supreme Court bench upheld the total prohibition on plastic bags. The bench held that State Act is not in contravention of the Central Rules but puts more stringent conditions than what is permissible under the Central Rules to eliminate the use of plastic bags, which has a larger public interest involved. “Maybe; the Central Government, considering the conditions prevailing in the country has taken steps for minimization of plastic waste but if the State takes steps to eliminate the plastic waste, such Act cannot be said to be irreconcilable to the Central law. Therefore, within the State, both the Central law and the State law can be read harmoniously, as the State law is a step forward than what has been prohibited by the Central Law,” the bench added.
Dismissing the writ petitions, the bench said: “The State Act prohibits manufacturing, storage, sale and use of plastic carry bags in the interest of environment whereas the Central Rules permit to carry on the business of manufacturing, storing and selling of various plastic and polythene items. Therefore, the Notification published under the State Act prohibits manufacturing, storage, sale, transportation and use of polythene bags whereas the Central Rules regulate the manufacturing, storage, and selling of plastic bags. Thus, the scope of the two provisions is different and that there is no inconsistency between the two statutes. Still, further, the Central Rules permit carry bags of 50 microns or more and the Notification under the State Act prohibits the carry bags is reconcilable. The manufacturer is required to obtain permission to manufacture plastic bags in terms of the Central Rules whereas the State Act prohibits the manufacture, transportation, storage, use and sale of the plastic bags in the State. The State Law is to achieve the larger public interest in the interest of environment for the benefit of the public at large whereas the Central Rules deal with the business interest of the manufacturer of the plastic bags and between the two, the larger public interest is required to be preferred.”