Today’s Legal Updates

Tuesday, 15th February 2022

Legal Awareness :- CONSTITUTION OF INDIA

PART III FUNDAMENTAL RIGHTS

Right to Equality

Article – 17 Abolition of Untouchability

“Untouchability” is abolished and its practice in any form is forbidden. The enforcement of any disability arising out of “Untouchability” shall be an offence punishable in accordance with law.

Today’s Legal Updates:-

  1. A full-bench of the Karnataka High Court will continue hearing a batch of petitions filed by female Muslim students against ban on wearing hijab by certain Karnataka colleges.
    • Senior Advocate Devadatt Kamat said on behalf of the petitioners, “We are not Turkey which says no religious symbols can be displayed in public. That hijab ban was upheld by court due to that. But their Constitution is completely different. Our Constitution recognises different faiths,” 
    • Kamat said, “I had to go to Kannada translation of Constitution and wherever public order is used, it is Sarvajanika Suvyavasthe,” 
    • He went on to submit that neither under Article 25(2)(a) or (b) of the Constitution can Essential Religious Practices be curtailed, except on grounds of public order, morality or health. On the wearing of hijab,
    • “This is not a display of religious identity. It is a practice of faith. To counter that, nobody wears a shawl. You will have to show that it is not display of religious identity alone but something more.”
    • Kamat then cited examples of the stand taken by other countries on similar issues. He referred to a South African judgment which set aside the expulsion of a Hindu girl with roots in South India for wearing a nose ring in school. He also referred to Turkey’s ban on wearing hijab, 
    • “Our secularism is not Turkey’s secularism. Our secularism is positive secularism where State plays an enabling role to exercise fundamental rights and religious freedoms of all communities. It recognises all religions as true.”
    • He referred to the doctrine of heckler’s veto, as per which, he said, the State has a positive obligation to create a situation for enforcement of fundamental freedoms.
    • “Assuming you have power to prescribe and enforce uniform, where is the power to expel students from school because they have not adhered to that uniform? The doctrine of proportionality will come in.”
    • Q. CJ Awasthi asked, “In your case, have the students been expelled?”
    • A. Kamat argued, “No, but they are not being allowed to attend class. It has the same effect,“
    • Justice Dixit pointed out, “Expulsion is one thing, not permitting entry is another,” 
    • Concluding his submissions, he asked the Court not to continue with its interim order and to allow the students to attend classes while wearing hijab of the same colour as the prescribed uniform.
  2. The petitioners – Muslim girl students from various colleges in Karnataka – approached the High Court after they were denied permission to attend classes on account of wearing hijab. Among the grounds cited in the petition is that the freedom of conscience and the right to religion are both guaranteed by the Constitution, despite which the students were singled out arbitrarily for belonging to the Islamic faith. the manner in which they were ousted created a stigma against them, affecting their mental health as well as their future prospects, it was submitted. It was also claimed that wearing of hijab was an essential part of Islam and enjoys protection under Article 25(1) of the Constitution, which confers the right to freely profess, practise and propagate religion.
    • the Court noted, “It hardly needs to be mentioned that ours is a country of plural cultures, religions & languages. Being a secular State, it does not identify itself with any religion as its own. Every citizen has the right to profess & practise any faith of choice, is true. However, such a right not being absolute is susceptible to reasonable restrictions as provided by the Constitution of India,” 
  3. Today A Special Central Bureau of Investigation (CBI) Court in Ranchi convicted former Union Minister Lalu Prasad Yadav in the ₹139 crore Doranda treasury scam case.
    • Yadav has already been convicted in four other fodder scam cases for illegal withdrawals of ₹37.7 crore and ₹ 33.13 crore from the Chaibasa treasury, ₹89.27 crore from the Deoghar treasury, and ₹3.76 crore from the Dumka treasury. The ₹950 crore scam had occurred when Yadav was Chief Minister of Bihar between 1991 and 1996.
    • He was sentenced to a total of 14 years’ imprisonment for his involvement in the fodder scam cases, and has challenged all convictions. He secured bail in the Chaibasa Treasury Scam case in October 2020, and in the Deoghar Treasury Scam case in February 2020. Most recently, he was granted bail in the Dumka Treasury case.
  4. Today the Bombay High Court reserved its order in the plea filed by Yes Bank founder Rana Kapoor against the alleged improper sanction obtained by the Central Bureau of Investigation (CBI) to prosecute him under the Prevention of Corruption Act (PCA). CBI had booked Kapoor, along with his wife, Bindu Kapoor, and Gautam Thapar for allegedly obtaining illegal gratification in the form of a bungalow by paying only ₹378 crores which was much lesser than the market price.
    • They were charged for offences under Sections 420 (cheating) and 120 (criminal conspiracy) of the Indian Penal Code and Sections 7, 11 and 12 of PCA.
    • Advocate Vijay Aggarwal appearing for Kapoor, made the following submissions:
      • Kapoor was deemed to be a public servant as per the Section 46A of the Banking Regulation Act and hence his alleged acts came under the ambit of the PCA.
      • After the PCA was amended in 2018, there is now statutory protection to public servants against investigations conducted without proper sanctions of a competent authority.
      • Due to this reason, a prior sanction was mandatory in the instant matter.
      • The FIR was registered in March 12, 2020, and the sanction to prosecute had been obtained by the CBI subsequently on March 16, 2020 which made the subsequent sanction bad in law.
      • The alleged sanction issued by Managing Director Prashant Kumar was cryptic, prospective and was without application of mind.
      • Additionally, there was also no Board Resolution which authorised Kumar to take decisions unilaterally.
    • Advocate Hiten Venegaokar appearing for CBI made the following submissions:
      • Permission in the present case had been properly granted which was considered by the Special Court before passing the order under challenge.
      • The offence of criminal misconduct under Section 13(1)(D) of the PCA was revealed after registration of complaint and accordingly approval was sought from the competent authority.
      • Argument about taking permission prior to adding of Section 13(1)(D) is untenable and liable to be rejected.
      • CBI had obtained sanction under Section 17A against Kapoor which was granted by the administrator of Yes Bank Ltd with the approval of the board of directors.
      • Yes Bank being a public company had a Board of Directors which was competent authority to grant sanction as per provisions of the Companies Act. In view of this, the Reserve Bank of India (as contended by Aggarwal) was not the competent authority.
  5. Today the Bombay High Court expressed its dissatisfaction on the affidavit submitted by the Maharashtra government on the status of CCTVs in police stations across the State.  (Somnath Laxman Giri and Anr. v. State of Maharashtra and Anr)
  6. Today the Supreme Court observed that life imprisonment can be imposed without any remission till the last breath, in place of death sentence.  (Ravindra v. Union of India and Others)
  7. Today the Supreme Court issued notice and condoned delay of 3,291 days in a bail plea of an accused who has been languishing in an Uttar Pradesh jail for more than 15 years.  (Bhura v. State of Uttar Pradesh)
    • the plea filed before the Supreme Court stated, “The appellant is languishing in jail since October 12, 2006 i.e. for last more than 15 Years, 3 Months and 20 Days (actual imprisonment). His Criminal Appeal No.3081/2010 is pending adjudication before the Hon’ble High Court of Judicature at Allahabad for last about 12 years, which is unlikely to be finally disposed in the near future,” 
    • The appellant was convicted by the trial court in 2010 on charges under Section 148 (rioting, armed with deadly weapon), 149 (unlawful assembly), 302 (murder), 307 (attempt to murder and 324 (voluntarily causing hurt by dangerous weapons or means). He and the co-accused were sentenced to life imprisonment on the murder charge.
    • The petition filed through advocate Alakh Alok Shrivastava further relied on the Supreme Court judgment of Saudan Singh v. State of UP, wherein the apex court held that if a convict has already undergone eight years of the actual sentence (exceptions apart) pending his criminal appeal before the High Court, then in most cases bail would be the rule.
  8. Today the Kerala High Court held that a teacher who administers moderate and reasonable force to a pupil without malicious intent, to enforce discipline, cannot be criminally prosecuted or penalised.  (Jaya v State of Kerala & Ors.)
  9. A Delhi Court granted bail to former Central Bureau of Investigation (CBI) officer Abhishek Tiwari, accused in the Anil Deshmukh document leak case, observing that he has “roots in the society” (CBI v. Abhishek Tiwari & Ors)
  10. Today the Haridwar Sessions Court granted bail to Yati Narsinghanand in a case in which he has been accused of making derogatory remarks against women.
    • He was charged under Section 295A (deliberate and malicious acts, intended to outrage reli­gious feelings of any class by insulting its religion or reli­gious beliefs) and Section 509 (word, gesture or act intended to insult the modesty of a woman) of the Indian Penal Code.
    • The Sessions Court had allowed bail application in that case, subject to furnishing two sureties of ₹50,000 and a personal bond of the same amount.
  11. Today the Supreme Court observed that it cannot grant credence to the compromise entered into by an accused with the survivor after he has been convicted for assault of the survivor-woman under Section 354 of the Indian Penal Code (IPC).  (Bimal Chandra Ghosh v. State of Tripura)
  12. On Thursday the Patna High Court said that it appeared that mental health was the lowest priority of the State government. (Akanksha Maviya v Union of India)
  13. The Meghalaya High Court upheld the dismissal of a police officer with terror links even though authorities did not disclose reasons for not holding an inquiry.  (Sanjeeb Ch Marak v. State of Meghalaya & ors)
  14. Today the Supreme Court agreed to list the legal dispute between the Delhi Government and the Central Government regarding control over administrative services in the national capital on March 3, 2022.
    • It is the Delhi government’s case that the elected government of Delhi has been excluded by the Central government from exercising any administrative control over the officers and that the officers are continuing to act on the orders of the Centre through the Lieutenant Governor (LG).
    • The issue considered by the Court was whether the exclusion of “services” relatable to Entry 41 of List II of the Seventh Schedule from the legislative and executive domain of the NCT of Delhi, vide a notification of the Government of India dated May 21, 2015, is unconstitutional and illegal.
    • The Supreme Court had on April 14, 2019, pronounced its verdict on various individual aspects relating to the tussle between the Delhi government and the LG. However, the two judges on the Bench – Justices AK Sikri and Ashok Bhushan – had differed on the issue of ‘services’ under Schedule VII, List II, Entry 41 of the Constitution of India.
    • Today the Supreme Court observed that persons who have not been named as accused in a case do not have the locus to seek quashing of proceedings concerning other persons.  (Hukum Chand Garg and Another v. State of Uttar Pradesh and Others)
  15. Today the Supreme Court asked Future Retail to approach the Delhi High Court for permission to go ahead with the proceedings before the National Company Law Tribunal (NCLT) for approval of its ₹27,513-crore transaction with Reliance Retail.
  16. Today the Kerala High Court directed the State Police and Enforcement Officials to take strict action against vehicle drivers/owners who are seen flouting the guidelines of the Road Safety Policy especially by overloading their vehicles or using a government nameplate without authorisation.  (Anoop KA v KR Jyothylal & Ors.)
  17. Today the Bombay High Court reduced the life sentence of a man convicted for murdering his wife to ten years observing that the act was a result of provocation which had left his “pride wounded.”   (Pravin Khimji Chouhan v The State of Maharashtra)
  18. Yesterday the Bombay High Court ruled that only special courts consisting of Metropolitan or Judicial Magistrates are empowered to hear complaints under the Insolvency and Bankruptcy Code (IBC), and not courts consisting of Sessions Court judges.  (Satyanarayan Bankatlal Malu & Anr v. IBBI & Anr)
  19. Yesterday the Gauhati High Court reiterated that the government has a statutory obligation to provide 3 percent reservation for persons with disabilities and to ensure that the same are filled up only by persons with disability.  (Saidur Rahman vs State of Assam and ors)

Legal Prudent Fraternity