Today’s Legal Updates

Saturday, 11th March 2023




Procedure Generally

Article – 208 Rules of procedure.

  1. A House of the Legislature of a State may make rules for regulating, subject to the provisions of this Constitution, its procedure and the conduct of its business.
  2. Until rules are made under clause (1), the rules of procedure and standing orders in force immediately before the commencement of this Constitution with respect to the Legislature for the corresponding Province shall have effect in relation to the Legislature of the State subject to such modifications and adaptations as may be made therein by the Speaker of the Legislative Assembly, or the Chairman of the Legislative Council, as the case may be.
  3. In a State having a Legislative Council the Governor, after consultation with the Speaker of the Legislative Assembly and the Chairman of the Legislative Council, may make rules as to the procedure with respect to communications between the two Houses.

Today’s Legal Updates: 

  1. The Supreme Court held the power to summon an additional accused under Section 319 of the Code of Criminal Procedure (CrPC) is a discretionary and an extraordinary power and the same should be exercised only sparingly and when strong and cogent evidence exists against such person.  (Vikram Rathi v. State of Uttar Pradesh and Another)
    • A division bench of Justices Abhay S Oka and Rajesh Bindal held that mere suspicion cannot be the basis to summon an additional accused.
    • the judgment said, It is not mere suspicion on the basis of which an additional accused could be summoned. Only where strong and cogent evidence is available against a person from the evidence produced before the court, which could lead to his conviction, that such a power could be exercised.
    • Placing reliance on its decision in Hardeep Singh and Others v. State of Punjab and Others (2014), the Court observed that powers under Section 319 CrPC is to be exercised sparingly and only in cases where circumstances warrant and where it requires much strong evidence that near probability of his complicity.
    • the Court said, The test that has to be applied is one which is more than prima facie case as exercised at the time of framing of charge, but short of satisfaction to an extent that the evidence, if goes unrebutted, would lead to conviction. In the absence of such satisfaction, the Court should refrain from exercising power under Section 319 CrPC.
  2. On Monday the Gujarat High Court Advocates’ Association (GHCAA) will organize a webinar at 11 am on the software Liquidtext in a step towards spreading digital literacy amongst lawyers and to encourage them to go paperless.
    • Liquidtext replaces physical folders which has files, bare acts and judgements in digital format. It enables search, extraction and organisational mindmap to frame factual as well as legal arguments.
    • The webinar will be hosted by team of original developers from California and their product director from Melbourne.
    • Advocates Aditya Bhatt and Masoom Shah, members of GHCAA who are adept at using this software will also explain utility of this software to its members.
  3. On Friday the Bombay High Court directed the principal district judge of Pune to conduct an enquiry to find out how BJP leader Kirit Somaiya managed to procure a copy of an order passed by a magistrate in a case to which Somaiya was not a party to the proceedings in any manner.  (Hasan Mushrif v. State of Maharashtra & Anr.)
    • A division bench of Justices Revati Mohite Dere and Sharmila Deshmukh observed that it was a “serious matter” and directed the district judge to find out how a non-party to the proceedings got a judicial order’s copy without applying for certified copy and when the copy of the order had not been uploaded on the official court website. 
    • the High Court directed, the manner in which the order was secured, we direct a principal district judge to inquire as to how said order was made available on same day and whether the same could have been made available without issuing certified copy of said order.
    • Mushrif’s petition stated, Somaiya has been making false and frivolous allegations against the petitioner and in fact predicting the actions taken by various law enforcement agencies especially the ED, with an oblique intention of getting the Mushrif arrested in any manner possible.
    • the High Court noted, Perusing the tweets, it is evident that order issuing process passed by the magistrate was put up by Somaiya on the same day. Admittedly Somaiya is not a complainant.
    • the bench said, It also appears that the complaint was lodged without complying with the mandate of the Supreme Court judgement in Lalita Kumar v Union of India case. We direct the police to not file chargesheet against petitioner. No coercive action against petitioner till further orders.
  4. On Friday the Delhi High Court granted permission to hold a seminar on the topic “Understanding Fascism in Present Indian Context”, after Delhi Police had denied permission for the same.
    • Justice Tushar Rao Gedela allowed the event but directed the petitioners to compile a list of invitees with complete details about their residence and identity cards and submit the same to the local police station.
    • the Court ordered, The other invitees who are still travelling and would be reaching Delhi by tomorrow, a similar list of such persons would be handed over to the SHO, IP Estate on or before by 12:00 noon tomorrow i.e., 11.03.2023.
    • The petitioner assures and undertakes that there shall be no cause of any untoward incident so far as the Organising Committee and participants are concerned… Needless to observe that the parties are to co-operate with each other to ensure that the seminar is held in a peaceful atmosphere and no untoward incident would occur.
  5. On Saturday the Union Health Ministry has told the Supreme Court the exclusion of transgender persons and gay men from donating blood is based on substantial scientific evidence since the prevalence of HIV and Hepatitis B or C is higher among such people as per studies.  (Thangjam Santa Singh vs Union of India and ors)
    • the affidavit filed by the government said, the category of persons excluded under the guidelines are those considered at risk for Hepatitis B or C infections …There is substantial evidence to show that transgender persons, men having sex with men, and female sex workers are at risk for HIV, Hepatitis B or C infections.
    • The petitioner moved the Court contending that such exclusion on the basis of gender identity and sexual orientation is “completely arbitrary, unreasonable, and discriminatory and also unscientific.”
    • The right of the recipient to receive a safe blood transfusion far outweighs the right of an individual to donate blood … constitutional courts should defer to the judgment of domain experts in this regard.
    • The issues raised by the Petitioners fall within the domain of the executive, aided by medical, scientific and other technical experts, guided by evidence as well as their own professional experience. As such, the issues raised ought to be judged from the lens of a public health perspective and not merely from an individual rights perspective, being mindful of the practical realities of unequal access to healthcare in a vast and diverse nation.
  6. The Delhi High Court has condemned the ‘inappropriate’ dance performances held at the ‘Holi Milan’ function organised by the New Delhi Bar Association (NDBA) Monday (6th March) in Delhi’s Patiala House Court complex.
    • On Friday in a full court decision the High Court objected to the function and said that it was not in line with the high moral and ethical standards of the legal profession.
    • Till the issue is finally decided, the Principal District and Sessions Judge has been directed not to allow the court premises to be used by the present Executive Committee of the New Delhi Bar Association for any event, till further orders.
    • the High Court also ordered that whenever any District Court Bar Association makes a request seeking permission to use the court premises for any event, the concerned Principal District and Sessions Judge shall take steps to ensure that nothing is done “which lowers the dignity or tarnishes the image of judicial institution/legal profession”.
  7. On Saturday Supreme Court judge, Justice BV Nagarathna said that the Constitution of India was enacted not merely to right colonial wrongs, but also to overcome social and economic domination.
    • Justice Nagarathna recalled that the point of time at which the Constitution of India and those of several other countries were enacted, were moments of profound transformation, in the backdrop of historic wrongs.
    • she said, First, alien, colonial domination; Second, indigenous social and economic and social domination. It is in that backdrop that the framers of our Constitution imagined, conceptualized and articulated a vocabulary of rights and freedoms.
    • she said, In a more comprehensive transformative avatar, the Constitution recognized that the State had never been the only locus of concentrated power in Indian society. Deeply pervasive hierarchies were maintained by structures that took various forms; caste, being one such form. Understood in that sense, the framing of the Constitution did not only mark the end of a struggle against political subjugation, but equally demonstrates a struggle for self-determination against multi-layered oppressive structures, such as race, caste etc.
    • Excerpts from the speech below.
      • On Equality – The Constitution mandates the state to redress not just the injustices of the colonial past but also ancient wrongs such as untouchability, the status of women, and Hindu patriarchy. The status of women was central to this self-conscious modernizing project and the judiciary has been a crusader for the transformative agenda on women’s rights. 
      • On Fraternity – Transformative constitutionalism calls for a realisation of full human potential, by way of cultivating positive social relationships and fraternity is the vehicle for achieving this transformative agenda. This is especially significant in order to deepen our democracy and its values. 
      • On Liberty – With a view to ensure that the rights enshrined under Article 21 are not reduced to securing merely “animal existence,” the protective umbrella of Article 21 has been interpret and cultivated to include rights of the highest amplitude, including, the right to bodily integrity, right to die with dignity, right to reproductive choice, right of self-identification of gender, right to privacy, etc. 
    • she said, Lest the “golden key to unlock the doors of injustice” remains only with people with deep pockets, the Supreme Court of India pioneered the concept of Public Interest Litigation (PIL) thereby throwing open the portals of Courts to the common man. PIL is the incarnation of judicial activism in its people-oriented litigative dimension. For long, the Apex Constitutional Court had been viewed as “an arena of legal quibbling for men with long purses.”However, thereafter, the Court came to be identified as the “last resort for the oppressed and the bewildered.
    • PILs have provided a mechanism for the Supreme Court to directly confront the issues faced by the more vulnerable sections of society and to address these issues, the proverbial lakshman rekha often may sometimes need to be shifted, she opined, These concerns are said to be remedied by rather extraordinary remedies, which, to the degree permissible under the Constitutional scheme, sometimes shift the line or the Lakshman Rekha, so to say, between adjudication and legislation on the one hand and administration and adjudication on the other.
    • Justice Nagarathna said in conclusion, The tyranny of unfreedoms, that restrict growth and development of an individual, such as systematic social depravation, intolerance, etc., must be uprooted in order to unearth the true transformative potential of Constitution.
  8. Senior Advocate Dr Abhishek Manu Singhvi has said that he did not question the statutory powers of the Bar Council of India (BCI) to regulate legal education and the overall profession in the country during a recent speech he delivered.
    • It is rather unfortunate that my speech was taken completely out of context and has been misquoted in the media and on that basis the BCI has made certain comments. I wish somebody had duly heard my speech … before making these unjustified comments.
    • As a senior member of the Bar, I fully recognise and appreciate the statutory powers, duties, responsibilities and obligations of the Bar Council of India to regulate legal education and legal profession. I had no intention, nor was it my view to question these well-established powers of the BCI as a statutory regulator nor did I factually do so.
    • The elephant in the room must be addressed. It is big and powerful, it is the Bar Council. It has too many functions – law reform, disciplining lawyers, legal education and the vicissitudes of electoral politics. Sometimes there will be compromises in the discharge of these multiple functions. You can see I have used my words carefully. Either a separate broad based group of academicians including CJI should be set up, or a national assessment body independent of BCI needed.
    • At no point of time in my speech, had I questioned or challenged the powers and jurisdiction of the BCI in relation to regulating legal education and legal profession…I made a suggestion that an empowered broad-based separate committee of academicians, chief justices, eminent lawyers should be set up or an independent and autonomous national council for legal education and research, generally created by or under the auspices of the BCI for reimagining legal education.

Legal Prudent Fraternity