Legal Updates (12th October 2022)

Today Legal Updates

Wednesday, 12th October 2022

Legal Awareness :- CONSTITUTION OF INDIA

Part – Vl THE STATES

CHAPTER- II  THE EXECUTIVE

The Governor

Article – 162 Extent of executive power of State.

Subject to the provisions of this Constitution, the executive power of a State shall extend to the matters with respect to which the Legislature of the State has power to make laws:
Provided that in any matter with respect to which the Legislature of a State and Parliament have power to make laws, the executive power of the State shall be subject to, and limited by, the executive power expressly conferred by this Constitution or by any law made by Parliament upon the Union or authorities thereof.

Today’s Legal Updates :-

1. On Wednesday the Supreme Court reserved its judgment in petitions challenging the Karnataka High Court order which upheld the ban on wearing Hijab to educational institutions of Karnataka was after ten days of intense hearing about 12 counsels from different parties argued before the bench of Justices Hemant Gupta and Sudhanshu Dhulia..
2. The Supreme Court will pronounce its verdict tomorrow in a batch of appeals challenging a Karnataka High Court verdict that had upheld a Karnataka government order (GO) effectively empowering government colleges in the State to ban the wearing of hijab by Muslim girl students in college campus. (Fathima Bushra vs State of Karnataka)
   • A three-judge Bench of then Chief Justice Ritu Raj Awasthi and Justices Krishna S Dixit and JM Khazi of the High Court had held that:
     • Hijab is not a part of essential religious practices of Islam;
     • Requirement of uniform is a reasonable restriction on the fundamental right to freedom of expression under Article 19(1)(a);
     • The government has the power to pass the GO; no case is made out for its invalidation.
3. On Wednesday the Madras High Court took suo motu cognisance of an incident in which a man immolated himself within court premises after his son was allegedly denied a community certificate by the local revenue authorities.
   • the Court said, Prima facie it is found that the son of the deceased Mr.Velmurugan was deprived of his Community Certificate though he belongs to Narikuravar Community. The Authorities are expected to respond to the applications submitted by the citizen for issuance of Community Certificates. Citizen cannot be made to run pillar to post for the purpose of getting Community Certificates. Even in the matter of issuing Community Certificates, several irregularities are brought to the notice of this Court.
   • the Court noted, Thus, this Court has to examine whether the right of the deceased Mr.Velmurugan and his son to get Community Certificate was infringed or not. Further the reason for non-issuance of Community Certificate by the Revenue Authorities is also to be examined. The Members of the Bar made a submission that as per the statement of the deceased Mr.Velmurugan made several attempts before the Revenue Authorities for getting Community Certificate and all his efforts went in vain and consequently he committed suicide.
4. On Wednesdat the Bombay High Court sought a response from the Maharashtra government on whether private companies or organisations could undertake crowdfunding of treatment of diseases.  (Impact Guru Technology Ventures Pvt Ltd v. Special Inspector General of Police)
   • it said in its order, After reading of the policy and particularly, the caption under voluntary crowd funding for treatment, we are unable to find any material permitting either private organization or a company to display such information and photograph of the child which they are displaying on public platform.
   • it queried in its order, If they are retaining some percentage of amount, then how much that percentage is retained.
   • Therefore, the Court asked the State authorities to clarify the following on the next date of hearing:
     • which Act/Regulation governs the crowd funding ;
     • can the crowd funding be done by the private organizations/companies and if it is permissible, who is the monitoring authority.”
5. On Wednesday the Delhi High Court lamented how video conference (VC) facility for arguing cases was being misused. (Rahul Thakur vs. Lt. Governor, GNCTD & Ors)
   • the Court said in its order, On the last date, the advocate himself said that he wishes to withdraw the plea but now has taken a ‘somersault’ in front of the court. It is unfortunate that the facility of video conferencing is being misused.
   • the bench made it clear, This court will not alter the previous order based on his submission today.
   • The Court noted in its order that when the matter was last heard, the advocate had appeared through VC and made a categorical statement which was reduced to writing in the order. Thereafter, the plea was withdrawn.
6. On Wednesday Justice PB Varale of Bombay High Court said that credit for his achievements in the legal profession culminating in the judgeship of the prestigious High Court goes to Dr. BR Ambedkar.
   • the judge said, I am in this noble institute all because of the great scholar and political thinker – Dr. Babasaheb Ambedkar. He picked up a small trader in Nippani (Justice Varale’s grandfather) while he was thinking of initiating a social movement. He wanted men of confidence.
   • Justice Varale added, A small person in a remote place would not have dreamt of taking up the legal profession and be a part of this institution. It was all because of Babasaheb Ambedkar.
   • Justice Varale told, He picked my grandfather a small time trader of Nipani (in Belgaum, Karnataka). He told him ‘I am going to start an institute in Marathwada as that place has no educational facilities. It is my endeavour to provide best of education for our children of depressed and oppressed class’.
   • Justice Varale recounted, When he wanted to take further education, Dr. Ambedkar suggested ‘Why don’t you take legal education?’ That is how my father took legal education, became judicial officer in several courts, and finally became Registrar General of this Court.
7. On Wednesday the Punjab and Haryana High Court declared a holiday for Karwa Chauth tomorrow after a request was made for the same by the Punjab and Haryana High Court Bar Association.
   • stated the notification, It is hereby notified for general information that 13th October 2022 is declared as local holiday in this High Court and in lieu thereof, 29th October 2022 (Saturday) is made as a Court working day in this Court.
   • The festival of Karwa Chauth is largely celebrated in North India, wherein many women fast during the day. Since there are number of Hon’ble Lady Judges, women lawyers practising in the Hon’ble Punjab and Haryana High Court and also female staff working in the court, it is requested that a holiday be declared on the said occasion of Karwa Chauth falling on 13.10.2022. In lieu thereof, the court may consider having any Saturday as a working day in the Court.
8. On Wednesday the Supreme Court agreed to hear submissions by petitioners in a batch of 58 pleas challenging the Central government’s 2016 demonetisation that devalued ₹500 and ₹1,000 bank notes. (Vivek Narayan Sharma v Union of India)
   • In order to declare the issues academic or infructuous also we need to examine since both parties do not agree,” said the the five-judge bench in response to the argument of the Central government that nothing survived in the matter and hearing it would be an academic exercise.
   • One thing I might just point out: as far as 77′ 78′ demonetisation is concerned, that decision eventually came in 1996 by Constitution Bench which examined the statute and thereafter went into individuals grievances.
   • 1. Section 26(2) of the Reserve Bank of India (RBI) Act allows government to declare all series of a particular denomination as being no longer legal tender
     • If not read down, Section 26(2) confers an unguided, uncanonised power and is liable to be struck down under Article 14 & 19. Lives of humans and livelihoods of millions were lost or affected.
   • 2. The decision-making process was deeply flawed
     • The Cabinet was transmitted the recommendation…the Cabinet was waiting. This recommendation comes to the government and is accepted. Within minutes, government makes the notification and the Prime Minister goes on television to announce demonetisation.
   • 3. The recommendation did not consider relevant factors
     • As per my information, it was not disclosed to the board that by demonetising the ₹500 and ₹1,000 rupee notes, 86.4 per cent of currency would be withdrawn. No prudent Cabinet Minister or board member would agree to this.
   • 5. The test of proportionality
     • The five-judge Bench was also urged to apply the test of proportionality to the recommendation of the RBI as well as the decision of the government while taking into account that the lives of hundreds were lost and livelihoods of millions were affected.
   • 6. Powers of the Court
     • Finally, it was contended that despite the passage of time since the exercise took place, the top court had the power to grant declaratory relief and mould relief.
9. On Wednesday the Kerala High Court quashed the FIR registered against actor Sreenath Bhasi for using filthy language while being interviewed by a woman for a social media channel.  (Mr Sreenath Bhasi v The State of Kerala and Another)
   • A first information report (FIR) was then registered against him alleging commission of offences under Section 354A(i)(iv) (making sexually colored remarks), 294(b) (obscene words in or near any public place) and 509 (word, gesture, or act intended to insult the modesty of a woman) of the Indian Penal Code.
10. On Wednesday the Law and Justice Department of the Government of Jammu & Kashmir has appointed advocate Rushab Aggarwal as Standing Counsel and advocate Shailesh Madyal as Advocate-on-Record to represent the Union Territory of Jammu& Kashmir before the Supreme Court.
    • the order appointing Aggarwal stated, Sanction is hereby accorded to appointment of Shri Rushab Aggarwal, advocate as Standing Counsel for the Union Territory of Jammu and Kashmir before the Hon’ble Supreme Court of India on terms and conditions as envisaged in Government order No. 2062-LD(A) of 2017 dated 08-06-2017.
    • the order appointing Madyal stated, Sanction is hereby accorded to appointment of Shri Shailesh Madyal, Advocate-on-Record to represent Union Territory of Jammu and Kashmir in the Hon’ble Supreme Court of India on the terms and conditions as envisaged in Government order no. 3005-LD(A) of 2003 dated 21-10-2003 read with Government order no. 2062-LD(A) of 2017 dated 08-06-2017 and any order, circular or instructions issued by the Government of Jammu and Kashmir regarding fixation of terms and conditions of Advocate on Record.
11. On Wednesday A sessions court in Lucknow reserved its order in the bail plea filed by Kerala journalist Siddique Kappan in the money laundering case initiated against him under the Prevention of Money Laundering Act by the Enforcement Directorate (ED).
    • the affidavit said, It has come out in the investigation that the petitioner was actually part of the PFI/CFI delegation to meet the family of the Hathras victim and foment discord and spread terror. Investigation has revealed that the said delegation was sent to Hathras on the directions of co-accused Rauf Sharif (National General Secretary, CFI, prime fund raiser and financial transaction handler for PFI/CFI), who had also provided finances for the trip.
12. On Wednesday the Kerala High Court held that the religion of parties is not a relevant ground to be considered while registering marriages under the Kerala Registration of Marriages (Common) Rules, 2008.  (Lalan PR & Anr. v Chief Registrar General of Marriage)
    • the Court said in its judgment, The respondents, while registering the marriage as per the Rules 2008, should remember that our Country is a secular Country giving liberty to all citizens to adopt their own religion and to follow their own rites, customs, and ceremonies. Kerala is a State, where the Great reformers like “Sree Narayana Guru and Ayyankali” lived and they propagated the principle of secularism.
    • the judgment, It is unfortunate that nowadays there is an attempt to hijack the names of these legends by certain caste group as if they are their caste leaders. That should not be permitted. They are the reformers of our country. They are the leaders of all citizens of this country irrespective of the religion and caste. Social reformers of different religions should not be caged in their religion or caste at the instance of certain groups. If it happens, we will be insulting those legends.
    • The registration of marriage as per the Rules, 2008 will not prove a valid marriage, and it is only to protect the rights of the women and the children born in that marriage. Therefore, hypertechnical defects shall not be raised by the Marriage Officers.
    • the Court said, Therefore, simply because the father or mother of one of the parties to a marriage belongs to a different religion, it is not a reason to reject an application submitted for registration of the marriage as per the Rules, 2008.
    • the Court said as it ordered the registration of the petitioners’ marriage, The only condition for the registration of the marriage as per Rule 6 of the Rules, 2008 is that the marriage is to be solemnized. Religion of the parties is not a consideration for registering marriages. Respondents are unnecessarily creating confusion while registering the marriages, which are solemnized, according to parties.
13. Rutuja Latke, wife of late Shiv Sena MLA Ramesh Latke, has approached the Bombay High Court seeking directions to the Brihanmumbai Municipal Corporation (BMC) to accept her resignation as an employee of the municipal body, so that she can contest in the upcoming by-elections to the Andheri (East) constituency of the Maharashtra State Assembly.
    • Latke stated in her petition that she had put in her formal resignation on October 3 and complied with all formalities. But the civic body has been withholding their acceptance to the request and not issuing appropriate order.
    • Latke also pointed out that she had deposited ₹67,590 (equivalent to her salary) to get her notice period waived off.
    • This is the first bye-poll in the State that the SS (UBT) faction will be contesting under its new name and symbol awarded by the Election Commission of India.
14. On Wednesday the Supreme Court made it clear that no citizen can be prosecuted for the violation of Section 66A of the Information Technology Act (IT Act), which was struck down in the 2015 judgment of Shreya Singhal v. Union of India.
    • After hearing submissions of Advocate Zoheb Hussain, appearing for the Central government, the Court noted that despite its 2015 judgment, cases were still being registered under Section 66A of the IT Act. 
    • It thus ordered,
      • No citizen can be prosecuted for the alleged violation of Section 66A.
      • In cases in which citizens are facing prosecution under Section 66A, that allegation and portion of the case shall stand deleted.
      • Home secretaries, Directors General of Police and other relevant authorities of states will ensure that the police will no longer use Section 66A.
      • In government, semi-governmental or private publications, readers must be informed that the provision has been struck down.
15. On Wednesday the Punjab and Haryana High Court quashed the First Information Report (FIR) lodged against former Aam Aadmi Party member Kumar Vishwas who was booked for hate speech and unlawful assembly after he had accused Delhi chief minister Arvind Kejriwal of being a separatist.  (Kumar Vishwas vs State of Punjab)
    • the judge said in his order, There cannot be any democracy without freedom of choice and free speech. In a democracy, it is the pre-election times when people’s information matters the most. The petitioner being a social educator, while sharing the alleged exchange that took place with his ex-associate (Kejriwal), cannot be said to have spewed the venom. There is nothing to infer any intention to divide the classes on communal lines.
    • the judge observed, It has always been India’s quest to flirt with new ways for self-realisation. Her  vivacity and dynamism can be greatly attributed to an environment of diversity and freedoms abound; the freedom to be an atheist, an antagonist, or a believer; choice to practice beliefs of karmas, re-birth…There exists an inherent liberty to individuals and the communities to propagate, follow, and spread the wisdom enshrined in the varied philosophies.
    • the Court opined, Even in the shackles of colonialism, her mind remained free and eager for deliverance. With the liberation of her soul, the swatantrata was not just from British rule but from the slavery of thoughts, unchaining of oneself from the subjugation of alien laws, restoring the absolute freedom to think, undoing the status quo, and spreading the information.
    • At the stroke of midnight, apart from liberty, we got azadi of choice and azadi of free speech and of expression; and we took a great leap forward by endorsing democracy, ushering equality and dignity, ensuring infinite opportunities to preserve and spearhead this fantastic diversity till eternity.
    • the judge opined, Thus, it would not be permissible to expand the scope of the complaint to connect the alleged subsequent incident by fishing the evidence and on the assumptions and suspicions of the complainant. This is a fit case for this court to prevent the abuse of the process of law because the allegations made in the complaint and the probe do not contain any material which even remotely links the incidents with the interviews of the petitioner.
16. On Wednesday the Punjab and Haryana High Court quashed the hate speech and criminal intimidation case registered against BJP leader Tajinder Pal Singh Bagga by the Punjab police for remarks allegedly threatening Arvind Kejriwal for the latter’s views on the movie ‘The Kashmir Files’. (Tejinder Pal Singh Bagga v State of Punjab & Anr)
    • the Court observed, Merely because the language used by the petitioner is unrefined, it shall not be sufficient to import hatred, detestation, or slander to its contents. There is nothing in the statement to take the speech as an insult or threat, or an attempt to vilify the members of the targeted group or that it stigmatized them.
    • Aaj jo unhone kaha hai uske liye unhe maafi mangni chaiye. Agar wo maafi nahi mangte to Bhartiya Janta Yuva Morcha ka ye Karyakarta unhe jine nahi dega. – Hum sab tab tak apna pradarshan jaari rakhenge jab tak vo is desh ke hinduoon se maafi nahi maang lete, ye kehne ke liye ki es desh ke hinduoon ka narsanhaar hua tha Kashmir mein wo jhutha tha. (He should apologize for what he has said today. If he doesn’t apologize, then this BJP worker will not let him live. They would continue their agitation till the time he apologizes to the Hindus of this country for his statement that the genocide of Hindus in Kashmir was a lie).
    • the Court observed, The petitioner’s statement did not seek an armed rebellion and was not a call to assault.
    • the order said, Democracy is all about informing the people and creating sentiments, and it would be an offence only if campaigning is full of hatred, or there is an involvement in malicious activities, or derogatory and vicious statements are made to gain political mileage.
    • the Court on jurisdiction aspect, Every post of the petitioner will not give territorial jurisdiction to the State of Punjab to investigate in the guise of the present FIR. Had the investigating agency of another State been given that much leverage, it would impact the federal structure under the Indian Constitution, where every State has the right to maintain law and order within its territorial boundaries.
17. On Wednesday Solicitor General Tushar Mehta told the Supreme Court that the top court’s 2019 judgment in the Ayodhya case does not deal with the validity of the Places of Worship (Special Provisions) Act, 1991 (Act).
    • the bench asked SG Mehta, Is the 1991 Act covered by the Ayodhya judgment? What is your personal view.
    • the Court ordered, Ms Grover and any other counsel may inform Adv Kanu Agarwal within 7 days of reply, Mr Agarwal will collate the questions so that attention of court can be focussed on these questions. Mr Agarwal shall share copy of such convenience compilations with lawyer of all parties in digital mode. Thereafter all counsels to submit written submissions not exceeding 3 pages.
18. On Wednesday A Magistrate court in Ernakulam remanded the three prime accused in the human sacrifice case to judicial custody for 14 days. The police arrested one Rashid for allegedly for arranging the abduction and committing the sacrificial murder. The other accused, married couple Bhagaval Singh and Laila, were also taken into custody for suspicion of having commissioned and taken part in the sacrificial murder.
19. On Wednesday the President of India Droupadi Murmu will lay down the foundation of the National Law University (NLU), Tripura. Operations at the 25^th NLU in the country are expected to begin in November 2022.
20. On Wednesday the Bombay High Court has recommended the Central government to make the offence under Section 498A (cruelty to wife by husband, relatives) of the Indian Penal Code compoundable.  (Sandip Sule vs State of Maharashtra)
    • the bench noted, We may note, that everyday, we have a minimum of 10 petitions/applications seeking quashing of Section 498A by consent, since 498A is a non-compoundable offence. Concerned parties, have to come personally before the Court from wherever they are residing, including from villages, thus incurring tremendous hardships for the parties concerned, apart from travelling expenses, litigation expenses and staying expenses in the city. Parties, if working, are required to take a day off.
    • the bench ordered, We direct the registry to forward a copy of this order to the Additional Solicitor General, for taking necessary steps or action and to enable him to take up the issue before the concerned Ministry, at the earliest.
    • the bench observed, It is immaterial, whether the parties have reconciled or have amicably resolved their disputes and entered into consent terms, the fact remains, that to quash the proceeding, parties are required to file applications or writ petitions in this Court, are required to remain present in this High Court, and to file affidavits and give proof of their identity.
    • the bench noted from the data, Of these, 5,520 were closed by Police citing as false and overall 16,151 cases were closed by police either because they were false or there was a mistake of fact or law or it was a civil dispute etc. That is 14.4% of cases were closed by police for not finding merit in the case. Around 96,497 men, 23,809 women were arrested under 498A, making total arrests under this section of 1,20,306 persons. A total of 18,967 cases were tried in courts of which 14,340 led to acquittal and 3,425 led to conviction,.
21. On Wednesday in Supreme Court Solicitor General (SG) Tushar Mehta and Senior Counsel and former president of the Supreme Court Bar Association (SCBA), Dushyant Dave engaged in heated exchange of words.
    • Solicitor General Tushar Mehta then said, Mr Dave’s arguments will be pedestrian. Ok saying it to his face, (since) people say this outside.
    • Dave took strong objection to the same, I take strong objection. Mr. Mehta, you are a disgrace to the office of the Solicitor General. You are a political appointee and function like one.
    • Justice Gupta said, Don’t get tempers high.
22. On Monday the Kerala High Court ordered that heads of the educational institutions should be held liable if they hire buses that do not meet the safety standards in relation to noise control for carrying students in public places.
    • the order said, In case any contract carriage, which does not meet the safety standards and the standards prescribed in relation to control of noise is used in any public place for carrying students from any educational institutions, the head of that educational institution and also the teacher or teachers, who are in charge of that trip, who are least bothered about the safety of the students, shall also be proceeded against, in accordance with the law.
    • the order said, Entry of any contract carriages or other motor vehicles violating the safety standards or the standards prescribed in relation to control of noise or vehicles with unauthorized alterations, shall not be permitted in the premises of any educational institutions in the State, for any purpose whatsoever, including exhibition, auto show, etc.
    • the Court underscored, Earning of additional income by KSRTC or KURTC by the display of advertisements on their transport vehicles, under Rule 191 of the Kerala Motor Vehicles Rules, should not be at the cost of public safety.
23. On Wedndsday Delhi District Courts Bar Associations have decided to abstain from work today after an advocate, Sumit Sharma was arrested by Delhi Police allegedly for having a forged and fabricated law degree.
    • he note issued by ON Sharma, Secretary General, Co-ordination Committee, Delhi District Courts Bar Associations, The law degree of Advocate Sumit Sharma has been got verified as genuine as per BCD letter dated 02.09.2022 addressed to DCP SHAHDRA copies to SHO Anand Vihar as well as to ACP DIU SHAHDRA Distt. Wherein it is categorically and specifically impressed upon that if there is any issue pertaining to the same, it MUST be processed through BCD, however SHO Anand Vihar & DCP SHAHDRA intentionally and willfully defied the BCD instructions Letter.
24. On Tuesday the Gujarat High Court suggested senior advocates to allow their juniors to argue cases so as to make ensure that the young lawyers gain experience and the bar becomes more robust.
    • the bench said, Our endeavour is to make the young bar strong. Why we are saying all this is because today’s young advocates would be Senior Counsel in next 10 years. They should learn from now onwards. So let your juniors argue before us.
    • the Chief Justice responded, We don’t see you argue any case before us. Madam, you should start arguing now given your over three years practice.
    • CJ Kumar said, Mr Shah, we want your juniors to argue some cases before us from tomorrow. Let you junior appear before us from tomorrow and argue some cases.
    • The CJ quipped, Mr Shah, whatever minimum they would argue would also not happen if you are around them… They will be scared. Give them the opportunity to argue before every court.
    • CJ Kumar suggested, I haven’t seen Senior Advocates arguing in contempt cases. Even seniors should not mention matters. Let the juniors do it. Let them learn. Forget it if it is a heavy matter or a simple case, give them an opportunity to learn.
    • CJ Kumar responded, See our endeavour is to do justice. We aren’t advocates, who want to win a case. There is a difference.
    • he said, In fact, my senior used to tell me, I am throwing you in front of Lions and Tigers. You have to argue the case.

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