Today’s Legal Updates

Monday, 14th March 2022

Legal Awareness :- CONSTITUTION OF INDIA

PART III FUNDAMENTAL RIGHTS

Right to Constitutional Remedies

Article – 34 Restriction on rights conferred by this Part while martial law is in force in any area

Notwithstanding anything in the foregoing provisions of this Part, Parliament may by law indemnify any person in the service of the Union or of a State or any other person in respect of any act done by him in connection with the maintenance or restoration of order in any area within the territory of India where martial law was in force or validate any sentence passed, punishment inflicted, forfeiture ordered or other act done under martial law in such area.

Parliament Session

As the Budget Session of Parliament 2022 resumed after a hiatus, questions were raised in the Lok Sabha on the topics of cryptocurrency, education technology companies, arbitration proceedings in the Antrix-Devas matter, and more.

Non-compliance of ICC arbitral awards 

Q. Biju Janata Dal Member of Parliament Pinaki Misra was asked to the Union Finance Ministry, why the government had not complied with the awards of the arbitral tribunal at the International Court of Justice and two bilateral investment treaties.

A. Minister of State for Finance Pankaj Choudhury informed the House that the Supreme Court has already upheld decisions of the National Company Law Tribunal (NCLT) and the National Company Law Appellate Tribunal (NCLAT) that called for the winding up of Devas, involved in the Devas-Antrix scam.

There was serious fraud the company was involved in and multiple directors and others are under investigation/criminal trial for money-laundering offences. In this backdrop, the government is therefore challenging the arbitral awards and engaging counsel in all jurisdictions, the reply added the matter should not affect foreign investments into India.

As regards the Cairn and Vodafone disputes, as reported earlier, the Centre said that it has introduced Taxation Laws (Amendment) Act, 2021 by which it has proposed to do away with the retrospective application of 2012 amendments to the Income Tax Act. These amendments had made gains arising from the transfer of assets located in India through the transfer of the shares of a foreign company, taxable.

Money laundering via cryptocurrency

Q.  Bharatiya Janata Party (BJP) Member of Parliament from Jabalpur Rakesh Singh asked the government if it was aware of the use of cryptocurrency for money laundering by cyber criminals.

A. Union Minister of State for Finance Pankaj Chaudhary revealed, The Directorate of Enforcement (ED) is investigating 7 cases cases in which cryptocurrency has been used for money laundering. “some foreign nationals and their Indian associates have laundered the PoC through cryptocurrency accounts at certain exchange platforms. In one of such case an accused has been arrested by ED in the year 2020,” the ED has attached proceeds of crime amounting to ₹135 crore in these cases.

No regulator mulled for crypto investments

Q. BJP Member of Parliament Rattan Lal Kataria on whether steps are being taken to address the attempts to mislead the youth on high returns on investing in cryptocurrency.

A. the Union Finance Ministry informed that there was no agreement so far on a regulatory authority for investments in cryptocurrency, On whether it plans to address the prevalence of allegedly misleading advertisements by cryptocurrency companies, “The Government and the Reserve Bank of India (RBI) to protect the interest of consumer/investor, have been cautioning users, holders and traders of cryptocurrency, from time to time, about the potential economic, financial, operational, legal, customer protection and security related risks associated in dealing with cryptocurrency.”

No Central database of EdTech startups

Union Minister of State for Education Subhas Sarkar informed the House that data on education technology (EdTech) startups is not being maintained by the Ministry of Education.

The University Grants Commission (Open and Distance Learning Programmes and Online Programmes) Regulations of 2020 prohibit franchise arrangements with the private sector and students are advised to check the recognition of any such ed-tech programs on its website.

Case pending against Air India

Q. Congress Member of Parliament from Assam’s Silchar, Sushmita Dev had asked in the Upper House about the details of cases against the airline, and whether the cases will be transferred to the company that buys it.

A. Union Minister of State for Civil Aviation General (Retd.) VK Singh answered that there are 2,657 cases pending in Indian and international courts against Air India. These range from service matters and consumer complaints to commercial matters etc, “The cases are against Air India as a legal entity and will remain with Air India,” the reply said adding that the government will not be dealing with the same. It was clarified that in view of the ongoing litigation of the Central government with Devas Multimedia Ltd (of the Devas-Antrix scam), the Indian government is committed to indemnify the Tata Group in the matter. Foreign investors in Devas had earlier moved the US Federal Court in the Southern District of New York to identify Air-India as an alter-ego of the Indian government towards arbitration awards.

Today’s Legal Updates :-

  1. The Common Law Admission Test (CLAT) for the year 2022 has been postponed to June 19, the last date for submission of online applications for the exam has also been extended to May 9, 2022.
    • The Consortium had also announced the date for CLAT 2023, which will be held on December 18, 2022.
    • The Consortium had also decided to reduce the counselling fees from ₹50,000 to ₹30,000 for general category candidates and to ₹20,000 for reserved category candidates.
  2. Today the Supreme Court allowed candidates who qualified for the Delhi Judicial Service Examinations that were to be held in 2020 and 2021, to appear for this year’s edition of the exam, provided they have not crossed the maximum age limit of 32 years.
    • “We will allow candidates qualified in 2020 and 2021 when they did not cross the age of 32 to appear in exams this year. We will extend the same benefit for the ones who were not 45 years in 2020 and 2021 for the Delhi Higher Judicial Services exam this year. We are upholding the 35 years age (minimum age criteria for DHJS exam),” 
    • The Court also extended the last date of application for the Delhi Judicial Service (DJS) Exam and the Delhi Higher Judicial Service (DHJS) exams. The last date for applying for the DJS exam is now April 3 and the exam shall be held on April 17. For the DHJS exam, the last date of application is now March 26 and the exam will be held on April 3.
    • relaxation of the age limit of 32 years for the Delhi Judicial Service Examination 2022 as well as the minimum age of 35 for the Delhi Higher Judicial Service exam.
  3. Today the Allahabad High Court granted bail to former Indian Police Service (IPS) officer, Amitabh Thakur in an abetment of suicide case in which two individuals had immolated themselves outside the Supreme Court after accusing Thakur and certain others of harassing them.
  4. Today the Karnataka High Court quashed criminal proceedings against Snapdeal and its two Directors, Kunal Bahl and Rohit Kumar Bansal, for providing a platform to market and sell a drug without a valid license under the Drugs and Cosmetics Act.  (Snapdeal Pvt. Ltd v. State of Karnataka)
    • “It is held that intermediary as defined under Section 2(w) of IT Act or its Directors/Officers would not be liable for any action or inaction on the part of the vendor/seller making use of the facilities provided by the intermediary in terms of a website or a market place and that the Snapdeal/accused No.2 could not be responsible and/or liable for sale of any item not complying with the requirements under the Act on its platform by accused No.1 since the essential ingredients of Section 18(1)(c) of the Act not having been fulfilled neither Snapdeal nor its Directors can be prosecuted for the offence under Section 27(b)(ii) of the Act,” 
    • The petitioners, Snapdeal Pvt Ltd, and Kunal Bahl and Rohit Kumar Bansal, the Directors of Snapdeal, had approached the Court seeking to quash criminal proceedings initiated against them for offences under Sections 18(c) (prohibition of manufacture and sale of certain drugs and cosmetics), punishable under Section 27(b)(ii) (penalty for manufacture, sale, of drugs without a valid licence) and 28 (penalty for non-disclosure of the name of the manufacturer) of the Drugs and Cosmetics Act.
    • Snapdeal, an online site which provides a platform for online marketing and sale of consumer products, was selling a drug named Suhagra tablets, a prescription medicine used to treat erectile dysfunction in men.
    • “Even though the learned Magistrate has referred to the complaint in brief before taking cognizance of the offence, it has to be concluded that there is no application of mind before passing the impugned order against these petitioners,” 
  5. In last week the Bombay High Court dismissed as non-maintainable two public interest litigations challenging rules for election of speaker and deputy speaker of Maharashtra assembly after finding no genuine public interest in the pleas.  (Janak Vyas v. State of Maharashtra & connected PIL)
    • “Political rivalries have to be resolved elsewhere other than the Courts must be the determining principle for holding whether these PIL petitions involve genuine public interest or whether, at all, Vyas or Mahajan satisfies the test of uberrima fides, which is the first requirement for the maintainability of a public interest litigation” 
    • “Political considerations have driven both Vyas and Mahajan to institute these proceedings, which are more in the nature of ‘politically induced litigation’ rather than ‘public interest litigation’,”
    • “But not petitions of the present nature which serve only one purpose, i.e., clog the stream of justice by preventing the Court from considering more deserving cases which are made to await their turn for long periods of time,”
  6. The Uttarakhand High Court has said that the speech delivered by Waseem Rizvi (now known as Jitendra Tyagi) at the Haridwar Dharam Sansad amounted to hate speech that intended to wage war, promoted enmity and was derogatory towards Prophet Muhammad.  (Jitendra Narayan Tyagi alias Waseem Rizvi vs State of Uttarakhand)
    • “This Court refrains to reproduce from the transcript as to what was allegedly stated by the applicant. But, undoubtedly, the transcript reveals that there are huge derogatory remarks against a particular religion; against Prophet. The Prophet has been abused; it intends to wound the religious feelings of persons belonging to a particular religion; it intends to wage war. It promotes enmity. It is a hate speech,” 
    • “Having considered the repeated nature of allegations; the kind of utterances which the applicant has allegedly made, published video message and its possible impact on the society, this Court is of the view that it is not a fit case for bail. Accordingly, the bail application is liable to be rejected,”
  7. Senior Advocate Anmol Rattan Sidhu will be the new Advocate General of Punjab, Senior Advocate  Deepinder Singh Patwalia had resigned from the post of Advocate General in the wake of the change of government in the State.
  8. The Karnataka High Court will deliver its judgment tomorrow at 10:30 am in the petitions filed by women Muslim students against the ban on wearing hijab by certain Karnataka colleges.
  9. Today the Union Civil Aviation Ministry told the parliament, Case pending against Air India in various courts across India and abroad will remain with Air India after its acquisition by Tata, and the Central government will not deal with it.
  10. Today the Rouse Avenue Courts Delhi remanded former National Stock Exchange (NSE) head Chitra Ramkrishna to judicial custody for 14 days in connection with the NSE co-location scam.  (CBI v. Sanjay Gupta & Ors )
  11. On Friday the Delhi High Court asked the Delhi Waqf Board to move an application before the local Station House Officer (SHO) for full reopening of the Nizamuddin Markaz mosque.  (Delhi Waqf Board Through its Chairman v Government of NCT of Delhi and Anr)
  12. Today the Bombay High Court directed the Indian Hotel and Restaurant Association to remove Hindustan Petroleum Corporation Limited (HPCL) and Bharat Petroleum Corporation Limited (BPCL) as parties to the plea raising grievance against food delivery apps Swiggy, Zomato and Dunzo for delivering food from illegal and unauthorised outlets.
    • Thadani made the following submissions during the course of the hearing:
      • That a majority of the vendors did not have appropriate licenses.
      • The vendors operated from bare minimum spaces in the most unhygienic conditions.
      • That despite pointing out the mishap to the civic authorities, no action has been taken.
      • That the vehicles being utilized for food delivery are registered with the regional transport authorities for personal use, but are being utilised for commercial purposes.
  13. On Friday the Supreme Court stayed a National Consumer Dispute Redressal Commission (NCDRC) order which had held that damage to car on account of rainwater during floods is covered by warranty.  (The Branch Manager OSL Hyundai vs Ruparanjan Das and ors)
    • “Learned counsel for the petitioner contends that the car got damaged during floods when the rainwater entered the vehicle. The damage on account of such incident is not part of warranty and the authorities have completely erred in law in allowing the cost of the car to the complainant. Issue notice. In the meantime, there shall be stay of the operation of the impugned order,”
  14. Today the Orissa High Court notified its Vulnerable Witnesses Deposition Centres (VWDC) Scheme 2022 with the objective of ensuring a safe and conducive environment for recording the evidence of vulnerable witnesses.
    • “There is a pressing need to facilitate the salutary purpose underlying the creation of a barrier free environment where depositions can be recorded freely without constraining limitations, both physical and emotional. This requires not just the creation of infrastructure but sensitizing all stakeholders,” 
    • The apex court had also clarified that the definition of “vulnerable witness” contained in Clause 3(a) of the Guidelines for recording evidence of vulnerable witnesses in criminal matters of the Delhi High Court shall not be limited only to child witnesses who have attained the age of 18 years and should be expanded to include the following categories of vulnerable witnesses:
      •  Age neutral victims of sexual assault read with Sections 273 and 327 of the Code of Criminal Procedure 1973 and Section 354 of the Indian Penal Code 1860.
      • Gender neutral victims of sexual assault read with Section 2(d) of the Protection of Children from Sexual Offences Act 2012.
      • Age and gender neutral victims of sexual assault under Section 377 of the Indian Penal Code 1860 read with paragraph 34(1) of the decision in Sakshi (supra).
      • Witnesses suffering from “mental illness” as defined under Section 2(s) of the Mental Healthcare Act 2017 read with Section 118 of the Indian Evidence Act 1872.
      • Any witness deemed to have a threat perception under the Witness Protection Scheme 2018 of the Union Government as approved by this Court in Mahender Chawla v. Union of India (2019).
      • Any speech or hearing impaired individual or a person suffering from any other disability who is considered to be a vulnerable witness by the competent court.
      • Any other witness deemed to be vulnerable by the concerned court.
  15. Today the Karkardooma court Delhi granted bail to Congress councillor Ishrat Jahan in relation to a Delhi Riots case.
    • Jahan was arrested in March 2020 in connection with a Delhi Riots case for the alleged commission of offences under provisions of the Indian Penal Code, Prevention of Damage to Public Property Act, Arms Act and the Unlawful Activities Prevention Act (UAPA).
    • The prosecution had contested the maintainability of the same, contending that such a plea filed under Section 439 of the Code of Criminal Procedure (CrPC) could not be entertained by a special court.
  16. Today An Additional City Civil Court in Bengaluru issued an ex-parte temporary injunction directing Google India to preserve the email account of an ex-employee, along with all its data until the next date of hearing.
  17. Today A Special Court under Prevention of Money Laundering Act (PMLA) has denied bail to former Home Minister of Maharashtra Anil Deshmukh in the money laundering case being investigated by the Enforcement Directorate (ED).
    • Senior Advocate Vikram Chaudhari along with advocate Aniket Nikam advanced the following arguments for Deshmukh:
      • That Deshmukh’s case amounts to abuse of power and authority meant to harass him with vested interests.
      • That the trial is unlikely to commence soon with investigation still ongoing and no charge sheet having been filed in the main case being probed by the CBI.
      • That the investigating agency is already in possession of some material, which they claim is not enough to add Deshmukh as an accused, and yet sufficient for his arrest.
      • That the entire matter relating to various aspects of PMLA including the ambit and scope of certain provisions is sub-judice before the Supreme Court in a plea which also includes Deshmukh as a party.
      • That during the course of investigation which led to the complaint and supplementary complaint of ED, around 100 witnesses had been interrogated, and none of the witnesses claimed to have been influenced by Deshmukh.
    • Additional Solicitor Anil Singh with Advocate Shreeram Shirsat opposed the bail application with the following submissions:
      • That Deshmukh was the main conspirator and brain behind the conspiracy that led to the present case which the agency is presently investigating.
      • That he had always been the prime suspect in the FIR registered by the CBI.
      • That he is an influential person having deep political roots and there is every likelihood of him obfuscating the trail of proceeds of crime.
      • That Deshmukh played a significant role in generating and laundering the proceeds of crime which was collected from bar owners, and projected the same as untainted by depicting it as legitimate donations.
  18. Today the Gujarat High Court took serious note of a plea seeking initiation of contempt of court proceedings against a police officer for allegedly detaining an advocate due to previous grudge. (Bharatbhai Thobhanbhai Koyani v Jayendrasinh Udesinh Gohil)
  19. Today the Bombay High Court issued notice to the Maharashtra government in a public interest litigation (PIL) petition questioning the validity of the Standard Operating Procedure (SOP) issued by the State on March 1 continuing the restrictions against citizens who are not fully vaccinated against COVID-19 from travelling in public transport and accessing public places.
    • In the new petition filed through advocate Abhishek Mishra, Mithiborwala raised the following grievances:
      • That the State government through the order under challenge is making vaccination compulsory to avail benefits and facilities and hence people have been compelled to take vaccines for availing those benefits, especially since the policy is that vaccination is voluntary.
      • That as per provisions of the National Disaster Management Plan and Disaster Management Act the Central Health Ministry is authorised to issue directions and this ‘forceful vaccination’ is against the Centre’s stand.
      • That the Indian Council of Medical Research and the World Health Organization have clarified that there is no evidence to show that the vaccinated persons spread less infection and hence the classification between the vaccinated and unvaccinated is arbitrary and unconstitutional.
      • That mask mandates are unscientific and unnecessary as the Central government has stated wearing of masks is not mandatory.
    • The PIL has sought the following reliefs:
      • Quashing of the SOPs on the ground that the same are illegal, arbitrary and unconstitutional as per Article 14, 19 and 21 of the Constitution of India.
      • Hold that the acts of the Chief Minister Uddhav Thackeray are illegal and liable to be prosecuted under provisions of the Indian Penal Code (IPC).
      • Direct State to pay interim compensation of ₹5 crores to the petitioner for alleged violation of fundamental and constitutional rights of the petitioner and to recover the amount from guilty officials like former Chief Secretary Sitaram Kunte and others.
      • Call upon the State authorities to return the fine (of about ₹120 crores) collected from citizens on the basis of the unlawful mandators and recover the 50 percent commission given to clean up marshals by Brihanmumbai Municipal Corporation (BMC).
  20. Today the Punjab & Haryana High Court took note of the legal vacuum to govern live-in relationships and sought the Central government’s response on measures being taken to prevent adolescents with impressionable minds from living together. (Rohit Kumar v. State of UT Chandigarh)
    • petitions seeking protection of life and liberty by couples in live-in relationships when the Additional Solicitor General apprised the Court of the new proposed amendment being made to the Prohibition of Child Marriage Act increasing marriageable age of women to 21 years.
    • “What is proposed, to try and ensure that many adolescents with impressionable minds (not actually fully matured though they otherwise, technically, are of the age of majority in terms of the aforesaid Act), do not start living together and later start regretting such decisions, obviously also causing trauma to their parents and family,”
  21. Today A full bench of the Meghalaya High Court observed that it is impossible that illegal mining activities in the State are being carried out without the connivance of the local administration.  (In Re Suo Motu Illegal Mining of Coal in the State of Meghalaya)
    • “It is alarming that District Magistrates, Sub-Divisional Officers and even Block Level Officers are in place along with their counterparts from the police right up to the Superintendent of Police; but all of them turn a Nelson’s eye to such illegal activities. It can safely be said that the scene in and around Khliehriat speaks of the vast stretches there being beyond the purview of the administration and it is impossible that the illegal mining activities and the deposit of freshly mined coal would be conducted with such impunity without the possible connivance of the local administration or even worse,” 
    • “It is imperative that the matter be immediately looked into … [The Additional Advocate-General is] called upon by the Court to immediately communicate this order to the appropriate personnel. The matter requires immediate, serious attention.”
    • “The Chief Secretary to the State is responsible for implementing such directions and the Chief Secretary remains obliged to ensure that all illegal mining activities are stopped without further ado or delay,”
    • “It also appears that the State has done precious little to ensure the transportation of the coal that had been previously mined and the auction thereof through Coal India Limited as per the directions of the Supreme Court and the NGT, which has resulted in the present unacceptable scenario,”
  22. Today the Supreme Court came down on Kerala government Kerala State Road Transport Corporation (KSRTC) for filing plea against increase in prices for bulk diesel sold by state-owned oil marketing companies.
    • “You are the only State where people are appointed for 2 years and give them life time pension. The State has a lot of money, tell this to the authorities,” 
  23. Today Bharatiya Janata Party (BJP) lawmaker Girish Mahajan has approached the Supreme Court against the Bombay High Court verdict which dismissed the challenge to the rules for election of Speaker and Deputy Speaker of the Maharashtra Assembly. (Girish Mahajan v. State of Maharashtra & Ors)
  24. Today the Supreme Court observed that the power of trial court under Section 319 of the Code of Criminal Procedure (CrPC) to proceed against persons who have not been chargesheeted as accused, is a discretionary and extraordinary power which should be exercised sparingly and only in those cases where the circumstances of the case warrant.  (Sagar v. State of Uttar Pradesh and Another)
    • “The Constitution Bench has given a caution that power under Section 319 of the Code is a discretionary and extraordinary power which should be exercised sparingly and only in those cases where the circumstances of the case so warrant and the crucial test as noticed above 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,” 
    • Section 319 CrPC lays down power of trial court to proceed against persons not being the accused, whom the Court thinks, from the evidence gathered during the course of inquiry or trial, to have committed the offence.
    • The trial court in the present case had rejected an application filed by the complainant under Section 319 CrPC for summoning the appellant Sagar as accused to face trial in a murder case.
    • The Supreme Court relied on its decision in Harshdeep to hold that the power under Section 319 CrPC is discretionary and an extraordinary and should be exercised sparingly and only in cases where circumstances of the case warrant.
  25. Today the Meghalaya High Court held that the merely because a rape survivor did not experience pain in her genitalia and that she was wearing underwear when subjected to rape, cannot be proof that there was no penetration entitling the accused to be acquitted.  (Cheerfulson Snaitang vs State of Meghalaya)
    • Section 375(b) of the Penal Code recognises that insertion, to any extent, of any object into the vagina or urethra would amount to rape. Even if it be accepted that the appellant herein forced his organ into the vagina or urethra of the victim despite the victim wearing her underpants, it would still amount to penetration for the purpose of Section 375(b) of the Penal Code. In any event, by virtue of Section 375(c) of the Penal Code, when a person manipulates any part of the body of a woman so as to cause penetration into, inter alia, the vagina or urethra, the act would amount to rape.
    • One must read the evidence in its entirety and also be aware of the status of the persons involved, their levels of education, understanding and intellect…In the light of the victim’s assertion in the examination-in-chief, what she said in her cross-examination must be seen in the appropriate perspective and a degree of latitude has to be granted to the victim, even though she was an adult when the trial was conducted, that she would be flustered, nervous and extremely uncomfortable in such details being sought.
  26. A plea has been filed before the Supreme Court by a man claiming that his wife cheated him since she has male genital organs as a result of which the marriage could not be consummated.  (Hariom Sharma vs Priyanka Sharma)
    • “Learned counsel for the petitioner has drawn our attention inter alia to page 39 to contend that the medical history of the respondent shows “Penis + Imperforate hymen” thus respondent is not a female. Issue notice returnable in four weeks,”

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