Today’s Legal Updates

Wednesday, 15th March 2023

Legal Awareness: – CONSTITUTION OF INDIA

Part – Vl THE STATES

CHAPTER- IITHE STATE LEGISLATURE

Procedure Generally

Article – 211 Restriction on discussion in the Legislature.

No discussion shall take place in the Legislature of a State with respect to the conduct of any Judge of the Supreme Court or of a High Court in the discharge of his duties.

Today’s Legal Updates: 

  1. On Wednesday the Supreme Court said that the ex-Maharashtra Governor Bhagat Singh Koshyari’s actions in calling for a floor test which led to the fall of the Uddhav Thackeray government, raises serious concerns regarding exercise of powers by the Governor.  (Subhash Desai vs Principal Secretary, Governor of Maharashtra and ors)
    • A Constitution bench of Chief Justice of India (CJI) DY Chandrachud and Justices MR Shah, Krishna Murari, Hima Kohli and PS Narasimha asked whether the Governor can call for a trust vote within the assembly because some of the MLAs of the ruling party feel that their leader is not adhering to the party ideology.
    • CJI Chandrachud remarked, We are very seriously concerned that Governor should not enter into this area where his action will precipitate a particular result. Suppose MLAs of a political party feels that our leader is not adhering to the basic ideology of the party. They can vote their leader out in a party forum but can the Governor ask them to face a floor test on the basis of this. This is a functioning government and it is in session.
    • the CJI said, It would be dangerous for democracy.
    • the SG was representing the Governor said, Governor has to see that a stable government continues. A democratically elected leader must face the floor test. Majority of the party (Shiv Sena) did not enjoy this spectacle of the alliance (with the Congress and Nationalist Congress Party).
    • the CJI said, But the majority members then broke bread with the others for three years! all of you were in a happy marriage and what happened suddenly? Three years you cohabit and then suddenly you say we are done… enjoy fruits of the political office !! Someone has to answer this.
    • Justice Kohli demanded, Yes absolutely. What happened suddenly.
    • the CJI in response said, It is being said there is corruption in government, discontent within cadre of party, and that the alliance is against the core ideology of the party. None of this can be a ground for a trust vote … Governor is saying that but for the 39 government will fall.. but can the governor presuppose this? It is dependent on the decision of the Speaker.
    • Justice Kohli weighed in saying, Yes, it is a preemptory move. What is the apprehension that the Governor had?
    • the SG said, If there is internal dissent within party, can the Governor take a call in ordering a floor test. In Rameshwar Prasad this question was dealt with.
    • the CJI explained, You cannot ask the Governor for a trust vote when there is nothing to shake confidence in the government which is running. Trust vote is not to have a new political leader. Somebody else could become the head of the party. Governor has no business there till that number in alliance is same.
    • CJI Chandrachud disagreed, In fact, he (Governor) says in the letter that he is confident already that Uddhav Thackeray has lost the confidence of the house.
    • The Governor should not lend his office to effectuate a particular result. The mere fact that a floor test is called can also lead to precipitative action and toppling of the government. The threat to security (of Shinde faction MLAs) cannot be a ground to call for a trust vote. Only question is 34 members going apart. At the most, the Governor can say that he is of the view that there is some difference between Shiv Sena and INC-NCP. Can that be a ground to call for a trust vote? Then you are virtually breaking a party!
    • the CJI stated, Maharashtra is a highly cultured State. All these things that 40 dead bodies will come etc is said in politics. But you cannot say all of this (can be ground) for the power used by Governor. We are not condoning it (threats to Shinde camp MLAs) and are deeply concerned but Governors must use their powers with utmost circumspection.
    • So far as Congress and NCP is concerned, there was no internal shaking up there and it is a block of 97 members. 97 continues to be a solid block. Now out of 56 which Shiv Sena had, 34 went apart. So as on this date there was no suggestion that Shiv Sena can get along with the BJP. Governor cannot be oblivious to the fact that in a three-party coalition, the disruption is only in one party. None of the parties were side kicks, and had enough members.
    • the CJI remarked, Irrespective of the Governor feeling anything about pre or post poll alliance, this is a validly-formed government, and it was alien to the Governor to know that there were proceedings against the 34. He cannot say that a letter from these 34 will lead to shaking up the political party. If the 34 are party to the Shiv Sena, how does it lead to a change of trust in the house?
    • We will make all assumptions in favour of the Governor. The Governor has to treat all these 34 as part of the Shiv Sena, and if they continue to have 54 to 55, then why was the floor test called at all? Facts as they stand before the Governor are that the 34 were part of the Shiv Sena. If that is so why did the Governor call the floor test? One cogent reason. Tell me … There has to be something, which alters the legal constitution of the government, which is functioning.
    • Members are saying they do not have confidence in the party. It is not as if the legislative party members were breaking away from the political party. Here they are withdrawing their support and that is the difference. Would the Governor not be justified in forming an opinion that indeed the government has lost majority? This is my Constitutional submission … Only in extraordinary circumstances there can be no floor test else floor test is the norm.
    • the CJI reiterated, But this cannot be grounds to unseat a government.
    • Senior Advocate Kapil Sibal in his rejoinder submissions stressed that the Governor only has the power to recognise political parties and not factions.
    • He pointed out that before the Governor and the Election Commission of India, the Shinde camp claimed to be faction but in Court they have said they are the real Shiv Sena political party.
    • If he is the Shiv Sena, then where is the loss of confidence? What he is doing is recognising those 34 as a faction through a trust vote. Because fact is by law he cannot [be recognised].
  2. On Wednesday the Election Commission of India (ECI) told the Supreme Court that the poll body cannot be made a party to the appeal filed Uddhav Thackeray faction against allotment of bow and arrow symbol of Shiv Sena to the Eknath Shinde led faction.  (Uddhav Thackeray vs Eknathrao Sambhaji Shinde and anr)
    • the affidavit filed by the ECI before the Supreme Court said, The order of the Election Commission was passed not in an administrative capacity of the Commission but in a quasi-judicial capacity under Para 15 of the Symbols order and thus it has no contentions to make on merits of the case as the order is a well reasoned order and covers all the issues raised by the Petitioner.
    • the affidavit said, Thus ECI has no submission to make on merits of the case.
  3. On Wednesday the Gujarat High Court pulled up the State Police for not respecting the human rights of the five Muslim men, who were flogged in public by cops in October last year in Kheda district.  (Jahirmiya Rehmumiya Malek vs State of Gujarat)
    • A division bench of Justices NV Anjaria and Niral Mehta was not impressed by the submission of the errant cops who unconditionally apologised to the Court and stated on affidavit that it would uphold the Court’s majesty.
    • Justice Anjaria said, We don’t want you to uphold majesty of the court that is always upheld. This is an irrelevant pleading. We want you to uphold majesty of article 21 (right to dignity).
    • Justice Anjaria asked, Why? For beating the accused (Muslim men)?
    • he added, Humility beyond an extent is doubtful.
    • the judge underscored, Why to uphold majesty of court. You maintain and respect human rights in this matter. Respect the DK Basu judgment. That is all we want.
    • the bench pointed out, We are also not happy with the State affidavit. We had specifically said we will deal with custodial violence in this matter. But the affidavit filed only makes references to the timeline, Magisterial custody, production of accused etc. It does not refer to the facts pertaining to the beating incident.
  4. On Wednesday Bihar Deputy Chief Minister Tejashwi Prasad Yadav has approached the Delhi High Court challenging the summons issued by the Central Bureau of Investigation (CBI) asking him to appear for questioning in connection with the alleged land-for-jobs scam.
    • The Rashtriya Janata Dal (RJD) leader’s plea is listed for hearing tomorrow (Thursday) before Justice Dinesh Kumar Sharma.
    • The CBI has, till now, issued three notices to Yadav. However, he is yet to appear for questioning. The notices are dated February 28, March 4 and March 11.
  5. According to the Insolvency and Bankruptcy Board of India (IBBI), as on December 31, 2022, 611 Corporate Insolvency Resolution Processes (CIRPs) have resulted in resolution, with an approximate realizable value of ₹2.44 lakh crore for financial creditors.
    • Essar Steel India Limited – ₹41,017.71 crore
    • Dewan Housing Finance Corporation Limited – ₹37,160 crore
    • Bhushan Steel Limited – ₹35,571 crore
    • Bhushan Power & Steel Limited – ₹19,350 crore
    • Aircel Limited, Dishnet Wireless Limites and Aircel Cellular Limited – ₹6,630 crore
    • Binani Cements Limited – ₹6,469.36 crore
    • On Monday the stats were revealed by theUnion Ministry of Corporate Affairs to a parliamentary question by Lok Sabha MP Ravi Kishan.
    • The reply also revealed that as per information provided by National Company Law Tribunal (NCLT), 21,205 cases were pending with NCLT benches as on January 31, 2023. These include 12,963 cases under the Insolvency and Bankruptcy Code (IBC), 1,181 cases of mergers and amalgamation (M&A), and 7,061 other cases.
  6. On Wednesday the Uttar Pradesh BJP Spokesperson and lawyer Prashant Kumar Umrao has approached the Madras High Court seeking anticipatory bail after a First Information Report (FIR) was registered against him by the Tamil Nadu (TN) police for allegedly having spread false information about attacks against Bihari migrant workers in TN. (Prashant Kumar Umrao v The Inspector of Police)
    • Justice GK Ilanthiraiyan of the Madurai bench of the Madras High Court directed the Thoothukudi police to file its response to Umrao’s plea. 
    • the tweet alleged, After that, Tejaswi Yadav shamelessly celebrated birthday party with Stalin in Tamil Nadu.
    • Umrao’s plea said, Admittedly the petitioner is not the creator of such tweets and even the alleged forward of such tweet was not within his knowledge and the law is settled that in so far as the forwarding of hatred/offending messages are concerned, it is only the creator of the same is responsible for a criminal liability.
  7. On Wednesday the Central government cleared the appointment of five judicial officers as additional judges of the Gujarat High Court.
    • Susan Valentine Pinto
    • Hasmukhbhai Dalsukhbhai Suthar
    • Jitendra Champaklal Doshi
    • Mangesh Rameshchandra Mengdey
    • Divyeshkumar Amrutlal Joshi
  8. In a move that could change the contours of the legal profession in India, the Bar Council of India (BCI) has allowed foreign lawyers and law firms to practice foreign law in India, subject to certain conditions.
    • The BCI has come out with the Bar Council of India Rules for Registration and Regulation of Foreign Lawyers and Foreign Law Firms in India, 2022 to enable international lawyers and arbitration practitioners to advise on foreign law in India.
  9. The executive committee of the Supreme Court Bar Association (SCBA) on Wednesday decided to call off tomorrow’s general body meeting to vote on resolutions against Senior Advocates Kapil Sibal and Neeraj Kishan Kaul.
    • The Executive Committee of SCBA in view of the letter of Shri. KK Venugopal and in the larger interest of the Bar, has authorised the undersigned to write a letter to the Bar to recall the notice for the General Body meeting.
  10. On Wednesday the Delhi’s Rouse Avenue Court granted bail to former Union Minister and Rashtriya Janata Dal leader Lalu Prasad Yadav, his wife Rabri Devi and daughter Misa Bharti in land for job scam case. (CBI v Lalu Prasad Yadav and Ors)
    • Special Judge Geetanjali Goel granted bail to accused persons with a direction to furnish personal bail bond of ₹50,000 with one surety each.
    • the Court directed, As the charge-sheet has been filed without arrest of the accused persons except accused Dharmendra Kumar (A-8), who is already on bail, accused Lalu Prasad Yadav (A-1), Rabri Devi (A-2), Misha Bharti (A-3), Raj Kumar Singh (A-4), Mithlesh Kumar (A-5), Ajay Kumar (A-6), Sanjay Kumar (A-7), Vikas Kumar (A-9), Abhishek Kumar (A-10), Kiran Devi (A-12), Akhileshwar Singh (A-13), Ramashish Singh (A-14), Kamal Deep Main Rai (A-15) and Sowmya Raghavan (A-16) are admitted to bail on furnishing personal bond in the sum of Rs.50,000/- each with surety of like amount.
  11. On Last Week A Delhi Court refused to entertain a plea seeking interim injunction against publication and sale of a HarperCollins’ book titled “Gunning for the Godman: The True Story Behind Asaram Bapu’s Conviction”.   (Sanchita Gupta v Scroll Media)
    • The order came to be passed by Judge Sudhanshu Kaushik of the Patiala House Courts in a suit filed by the plaintiff in September 2020 along with an application for injunction on the ground that the book contained defamatory statements against her.
    • the order said, It would be judicial impropriety to re-appreciate these aspects at this stage for considering whether an injunction needs to be granted during the pendency of the suit.
    • the Court said, It is the decree or the order of the superior court which is final and operative…The doctrine of merger applies to judgments as well as orders passed by the superior forum. The order of the lower court merges with the order of the superior courts irrespective of the fact whether the order has been modified, reserved or affirmed by the superior forum.
    • the court thus ordered, Accordingly, the application under Order XXXIX Rule 1 & 2 of CPC stands disposed off in terms of order dated 22.09.2020 passed by the High Court of Delhi.
  12. On Wednesday Air Indian urination case accused Shankar Mishra has approached the Delhi High Court seeking constitution of an appellate committee to hear his appeal against designating him an ‘unruly passenger’ and banning him from flying for four months.
    • The matter was listed before Justice Prathiba M Singh today when the counsel appearing for Director General of Civil Aviation (DGCA) stated that the appellate committee already exists.
    • the plea stated, The Petitioner, being aggrieved by the order dated 18.01.2023 on grounds of the aforementioned factual and legal infirmities seeks to prefer an appeal against the said order and has written emails to the DGCA [Director General of Civil Aviation] on 19.01.2023 and to the Ministry of Civil Aviation on 20.02.2023, 27.02.2023 and 06.03.2023. However, no such committee has been constituted as of the date of filing this Writ Petition.
    • it was contended, As such, the Ministry of Civil Aviation’s inaction is directly infringing the Petitioner’s rights under Article 21 of the Constitution.
  13. On Wednesday the Karnataka High Court refused to repatriate a minor child with his father who lives in Germany, noting that the child is living in a “conducive” atmosphere with his mother and grandparents for the last five years in Bangalore.  (Sankar Viswanathan v. State of Karnataka)
    • A Division Bench of Justices Alok Aradhe and Vijaykumar Patil said that if the custody is handed over to the father, who lives alone in Germany, it would disturb the child’s daily routine life.
    • the Bench noted in the order passed, The presence of grand parents and their love and affection for the son is needed for better growth of the son and the same would not be available in Germany where the petitioner (father) stays alone. At this point of time, if the wife is directed to shift to Germany, the environment of the child would suddenly and abruptly be changed which would disturb the son’s daily routine and his education in formative years.
    • the order stated, The interim custody of the son has been granted to the wife by an interim order by the family court in Bangalore. The said interim order is still in force and therefore, in violation of the said order, which binds the parties, this court in exercise of extraordinary jurisdiction would not direct repatriation of the son to Germany.
    • the Bench opined, The remedy of writ of habeas corpus cannot be used for enforcement of an exparte order passed by the German Court, which was not in existence at the time when the son left Germany. No exceptional circumstances are made out by the husband to demonstrate that the son should be repatriated to Germany and in case, the son continues to stay with the wife in Bangalore, it would not be in the interest of the son.
  14. On Tuesday the Nagpur city police informed the Bombay High Court that it will not take further action against a man who was summoned for questioning after he filed an application under Right to Information (RTI) Act seeking information about the security provided at the headquarters of Rashtriya Swayamsevak Sangh (RSS) in Nagpur.
    • The statement was made by the assistant government pleader NS Rao before a division bench of Justices Rohit Deo and Vrushali Joshi which was hearing a plea filed by a 61-year-old daily wager and activist, Lalan Kishore Singh assailing the notice of December 26, 2021, issued by Nagpur Police.
    • the order recorded, Perusal of the notice reveals that since the petitioner submitted an application seeking Information under the Right to Information Act, 2005 (Act) in respect of the security provided to the Rashtriya Swayam Sevak Sangh, the petitioner is summoned for recording of statement.
  15. On Wednesday the Madras High Court was dismissed a public interest litigation (PIL) petition filed to stop or postpone a temple festival on the ground that it might disturb students writing their board exams. (S Murugesan v The Commissioner)
    • While dismissing the plea, a bench of Acting Chief Justice T Raja and Justice D Bharatha Chakravarthy said that there is more to life than exams.
    • No doubt children can’t be inconvenienced, but stopping the festival is not a solution. The children can be made to prepare in a secluded place during the day. Exam is not only life. Festivals are also important.
    • The Court was hearing a PIL filed by one S Murugesan, a daily wager who had sought an interim injunction restraining the local village committees and temple authorities in Salem district from conducting the Panguni festival, celebrated between March and April. He also sought a restraint on any other activity such as setting up loudspeakers that might disturb the students in the area who are preparing for their Class X and Class XII board exams.
  16. On Wednesday the Calcutta High Court highlighted that arbitral awards passed by an arbitrator appointed unilaterally, that is, only by one of the parties to the arbitral dispute, are void and unenforceable in law.  (Cholamandalam Investment and Finance Co. Ltd. v. Amrapali Enterprises and anr.)
    • Justice Shekhar B Saraf made the observation while dismissing a plea for the execution of an arbitral award after the judge found that the award had been passed ex parte and by a sole arbitrator, who was appointed unilaterally by only one of the parties to the dispute.
    • the Court held, Awards passed by a unilaterally appointed arbitrator are non est in the eyes of law.
    • the judgment added, Impartiality as discussed is the paramount principle of arbitral proceedings and something which the Courts have to safeguard at every stage of such proceedings. Even at the stage of execution, the lady of justice cannot turn a blind eye and let one party run over the other … Shackles of procedural limitation in such cases will not prevent parties from seeking the immunity of the Court. Parties making such unilateral appointments couch behind procedural technicalities to shield their unlawful act and reap the fruit of their own mischief. Accordingly, even if an award is not set side under the procedure established in section 34 of the Act, the courts, at the stage of execution can step in and declare a ‘unilateral appointment award’ as non-est in law, declare the same as a nullity and direct parties to re-agitate their issues before a new arbitral tribunal constituted in accordance with law.
    • the Court said, It does not deal with proceedings having been initiated pre the 2015 amendment and concluding post the 2015 amendment.
    • Justice Saraf remarked, a virus had emerged wherein finance companies and banks were facilitating appointment of a small cabal of arbitrators in hundreds of cases for themselves. The awards passed were soiled and tainted with bias. It was clear that the borrower was the underdog as he had no choice in the matter of appointment of arbitrator and the very concept of impartiality was given a go bye. In order to overcome this issue, the legislative amendments of 2015 and the judicial pronouncements on such amendments by the Apex Court have brought in a level playing field so that no party could have a higher bargaining power in the decision making process for appointment of an arbitrator.
  17. On Wednesday the Delhi High Court issued notice to Consortium of National Law Universities and Bar Council of India (BCI) on a petition demanding that the Common Law Admission Test for the year 2024 (CLAT 2024) be conducted in all regional languages listed in the eighth schedule of the Constitution.
    • A division bench of Chief Justice Satish Chandra Sharma and Justice Subramonium Prasad granted the authorities four weeks to respond to the petition.
    • the plea stated, CLAT discriminates against and fails to provide a level playing field to the students belonging to educational backgrounds rooted in regional languages. In a hyper-competitive paper, they are linguistically disempowered as they have to surpass the additional hurdle of learning and mastering a new language.
    • Naturally, aspirants belonging to English-medium schools have an advantage over their peers belonging to schools operating in Hindi or other vernacular languages. The underprivileged and disempowered aspirants can never view an exam solely based in English as ‘obvious’ unlike their privileged, English-speaking competitors.
    • the petitioner said, This figure has been more or less consistent with the results of the 2013-14 survey wherein 96.77% of the surveyed students came from English medium backgrounds, indicating that proficiency in the English language continues to be a major factor for gaining admission to a top NLU in the country.
  18. On Wednesday the Supreme Court refused to grant urgent hearing to Bharat Rashtra Samithi (BRS) leader Kavitha Kalvakuntla for questioning in relation to the alleged Delhi excise policy scam.
    • Kalvakuntla’s counsel appeared before a bench comprising Chief Justice of India (CJI) DY Chandrachud and Justice PS Narasimha contending that a woman being summoned by the ED was “completely against the law”.
    • the CJI refused to stay the summons or grant an urgent hearing while listing the case on March 24.
  19. The Bar Council of India (BCI) has allowed foreign lawyers and law firms to practice foreign law in India on a reciprocity basis.
    • Time has come to take a call on the issue. Bar Council of India is of the view that opening up of law practice in India to foreign lawyers in the field of practice of foreign law; diverse international legal issues in nonlitigious matters and in international arbitration cases would go a long way in helping legal profession/domain grow in India to the benefit of lawyers in India too.
    • it added, it would be mutually beneficial for lawyers from India and abroad and these Rules are an attempt by Bar Council of India in this direction. These rules will also help to address the concerns expressed about flow of Foreign Direct Investment in the country and making India a hub of International Commercial Arbitration…Let us ensure than an opportunity for creating development and growth for legal profession and in the legal sphere in India is not lost.
  20. On Tuesday the Bombay High Court directed the Bar Council of Maharashtra & Goa (BCMG) to dismiss one of the complaints filed against advocate Gunratan Sadavarte.
    • A division bench of Justices GS Patel and Neela Gokhale took the BCMG to task for even entertaining the complaint filed by activist Nitin Sanjay Yadav.
    • the Court ordered, Bar Council thinks such allegations are serious, but we do not think so. If this is not stopped on May 18 in its trap, we will stop it and then we will have things to say. We will not put him (Sadavarte) through that humiliation. You will on your own dismiss it whether the complainant appears or not.
    • We will suggest you engage a counsel in this. It is important that you argue the matter dispassionately. There is an English maxim – A man who is his own lawyer (has a fool for a client)… You know the rest.
  21. On Wednesday A public interest litigation (PIL) has been filed before the Delhi High Court seeking compulsory voting in parliament and assembly elections.  (Ashwini Kumar Upadhyay vs Union of India and Ors.)
    • According to the plea by BJP leader and Advocate Ashwini Kumar Upadhyay, such a move will improve voter turnout, promote political participation, improve the quality of democracy and secure the right to vote.
    • the plea states, It ensures that every citizen has a voice and that the government is representative of the people’s wishes. When voter turnout is high, the government is more accountable to the people and is more likely to act in their best interests.
    • it explains, When voting is compulsory, people are more likely to take an interest in politics and become engaged in the democratic process.
    • the PIL goes on to state, Many people are disillusioned with the political system and feel that their votes do not count. Compulsory voting can help to restore faith in the democratic process and encourage people to become more involved in politics.
  22. On Monday the Kerala High Court lifted its stay on an order of the National Green Tribunal that had slapped a fine of ₹1 crore on the Cochin Municipal Corporation for its delay in setting up a waste treatment plant at the site in accordance with the Solid Waste Management Rules, 2016. (Corporation of Cochin v Jith Kumar & Ors.)
    • A division bench of Justices SV Bhatti and Basant Balaji, that has been at the helm of a suo motu case initiated by the court regarding the fire, passed the order vacating the stay.
    • the Court stated, The efficacy and efficiency, at least, there is consensus that the site cannot be measured as a facility from any perspective under the Solid Waste Management Rules 2016 (for short, Rules 2016). The basic requirements for handling solid waste upon site delivery are unavailable…The interim order, we are of the view, shall not be taken as an advantage for an omission to discharge any of the obligations of the Corporation under the Rules 2016.
    • the Court said, Confidence is always subjective. The Municipal Corporation thought it could tide over and accomplish the targets. It is sad to note that on 02.03.2023, an unfortunate and uncontrollable fire incident occurred at the subject site. The smoke emanating from the site engulfed the city of Cochin. It choked the dwellers’ lives, resulting in this Court initiating suo motu and monitoring the situation ever since.

Updated by:- Adv. Aishwarya Dorwekar

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