Weekend Legal Updates

Saturday & Sunday, 16th & 17th April 2022




Article – 292   Borrowing by the Government of India

The executive power of the Union extends to borrowing upon the security of the Consolidated Fund of India within such limits, if any, as may from time to time be fixed by Parliament by law and to the giving of guarantees within such limits, if any, as may be so fixed.

Weekend Legal Updates :-

  1. The Supreme Court imposed legal costs and expenses of ₹50,000 on the State of Himachal Pradesh for disregarding the rights of certain persons during land acquisition which forced the affected parties to move court for remedies after decades of dispossession from their lands.  (Sukh Datt Ratra and Anr. v. State of Himachal Pradesh and Ors.)
    • A Bench of Justices S Ravindra Bhat and PS Narasimha placed reliance on its 2020 judgment in Vidya Devi v. State of Himachal Pradesh to hold that if the State authorities forcibly dispossess any person without following the due process of law, then it is a violation of their constitutional and human rights under Article 300A.
    • the Court held, When it comes to the subject of private property, this court has upheld the high threshold of legality that must be met, to dispossess an individual of their property, and even more so when done by the State.
    • While the right to property is no longer a fundamental right, it is pertinent to note that at the time of dispossession of the subject land, this right was still included in Part III of the Constitution.
    • The question remains – can the State, merely on the ground of delay and laches, evade its legal responsibility towards those from whom private property has been expropriated? In these facts and circumstances, we find this conclusion to be unacceptable, and warranting intervention on the grounds of equity and fairness.
    • the Bench opined, The State’s lackadaisical conduct is discernible from this action of initiating acquisition proceedings selectively, only in respect to the lands of those writ petitioners who had approached the court in earlier proceedings, and not other land owners.
    • the judgment noted, The State has, in a clandestine and arbitrary manner, actively tried to limit disbursal of compensation as required by law, only to those for which it was specifically prodded by the courts, rather than to all those who are entitled. This arbitrary action, which is also violative of the appellants’ prevailing Article 31 right (at the time of cause of action), undoubtedly warranted consideration, and intervention by the High Court, under its Article 226 jurisdiction.
  2. On Saturday the Former Supreme Court judge Justice Kurian Joseph is set to lead the efforts to secure the release of Nimisha Priya, a woman from Kerala who is on death row in Yemen. Priya was convicted of the murder of Yemeni citizen Talal Abdo Mahdi. Her appeal was also rejected by the Yemen Appeal Court. Yemeni law provides for the release of a convict if the victim’s family pardons the crime. The law also provides for payment of blood money to the victim’s family in exchange for a pardon.
  3. On Saturday A Mumbai court remanded former Maharashtra Home Minister Anil Deshmukh to judicial custody till April 29 in the corruption case being investigated by the Central Bureau of Investigation (CBI).
    • the judge said in his order, Pertinently, in earlier remand applications, the CBI had based their grounds as per the allegations mentioned in the FIR about exercising influence over the transfer and posting of the officials and considering the said ground the custody was granted. Therefore, in my view since sufficient CBI custody was granted, the grounds for further custody of the accused are not good and satisfactory. Hence, this court isn’t inclined to grant CBI custody of the accused.
  4. On Saturday A Special Court Delhi upheld a Magistrate court order of 7th April that set aside the Look Out Circular (LOC) issued by the Central Bureau of Investigation (CBI) against former Amnesty International India chair Aakar Patel. (CBI v. Aakar Patel)
  5. The Supreme Court held that the right to establish an educational institution can be regulated to ensure the maintenance of proper academic standards, atmosphere and infrastructure and prevention of maladministration.  (Dental Council of India v Biyani Shikshan Samiti & Anr.)
    • A Bench of Justices L Nageswara Rao and BR Gavai observed thus while upholding a notification by which Regulation 6(2)(h) of the Dental Council of India (Establishment of New Dental Colleges, Opening of New or Higher Course of Studies or Training and Increase of Admission Capacity in Dental Colleges) Regulations, was amended.
    • the judgment, The impugned notification, undoubtedly, is made in order to ensure the maintenance of proper academic standards and infrastructure.
    • the apex court noted in its judgement, It can thus clearly be seen that the Constitution Bench itself has held that the right to establish an educational institution can be regulated. However, such regulatory measures must, in general, be to ensure the maintenance of proper academic standards, atmosphere and infrastructure and the prevention of maladministration.
    • the Supreme Court held, The object to be achieved is to provide adequate teaching and training facilities to the students. If in the wisdom of the expert body, this can be done by attaching a Dental College to the already existing Medical College, it cannot be faulted with.
    • the judgment said, It has been held that it is not permissible for the court to sit in judgment over the wisdom and effectiveness or otherwise of the policy laid down by the regulation ­making body and declare a regulation to be ultra vires merely on the ground that, in the view of the Court, the impugned provisions will not help to serve the object and purpose of the Act.
    • We are, therefore, of the considered view that it was not permissible for the Division Bench of the High Court to enter into an area of experts and hold that the unamended provisions ought to have been preferred over the amended provisions.
  6. Parents of a 19-year-old girl who passed away allegedly due to a rare-immunogenic response to the Covishied vaccine, have moved the Kerala High Court seeking compensation of ₹10 crores.  (Jean George & Anr. v Serum Institute of India & Ors)
    • The petitioners stated that their daughter, a 19-year-old postgraduate student, began feeling unwell a day after getting Covishield vaccine. A week later, she was taken to the hospital where she was given symptomatic treatment and discharged the same day.
    • The petitioners have attributed the responsibility for the death of their daughter on the following respondents:-
      • Covishield manufacturer, Serum Institute of India and its partner Bill Gates, for deliberately withholding information regarding the risks and complications associated with the administration of their vaccine.
      • The Union government as well as the State government, especially the Health and Family Welfare Department for making vaccinations compulsory without studying the after effects of the vaccine or issuing warnings and guidelines regarding the fatal element of the vaccine administration.
      • The hospital which administered the vaccination for not communicating the risk factors.
      • The hospitals where she was treated after the side effects started showing for not diagnosing the illness or its cause properly.
    • In the facts and circumstances of the case, it can be found that the petitioner’s daughter was given vaccine under deception, without proper information and by suppression of relevant and material facts about the risk involved and false narratives by the State/ Central/ Hospital/ Pharmaceutical authorities that the vaccines are completely safe.
  7. The Karnataka High Court directed the police not to harass a restaurant for having a hookah bar which allows customers to smoke hookah.  (Soho Pub and Grill v. State of Karnataka and Ors)
    • the order passed by the Court stated, under the guise of smoking hooka, customers at the petitioner restaurant cannot be allowed to use ganja, marijuana, etc. That apart, smoking of hooka should not cause inconvenience to other customers since smoking having been prohibited in public places, an exclusive area with separate enclosure requires to be reserved for hooka bar.
  8. On Monday A special POCSO court in Mumbai granted bail to a woman accused of forcing a 13-year-old girl into sex work.  (Yasmin Mohammad Hussain vs. The State of Maharashtra)
    • From the investigating papers it appears that investigation is over. Though the offence is serious punishable with imprisonment of life but the role of present applicant/accused is limited.
    • the Court explained, According to the documents of leave and license, it shows that brothel is in the name of accused no.4. Prima facie it appears that applicant is not connected with brothel and not involved in the offence punishable with death or life imprisonment.
    • She being lady no purpose will serve to keep her behind the bars. Trial has not yet commenced. Main accused are released on bail.
  9. Minority members of a co-operative society opposing redevelopment of the society building should be held accountable for the delay caused, the Bombay High Court suggested while ordering the non co-operating members to vacate their residential units for the redevelopment of the building.  (Choice Developers v. Pantnagar Pearl CHS Ltd. & Ors)
  10. On Wednesday the Bombay High Court observed while ordering a woman to grant access of her children to her estranged husband for a period of four days, Children have the right to love and affection of both parents as well as grandparents.
    • Justice Prabhudesai observed, Needless to state that the petitioner-father, the non-custodial parent cannot be deprived of his right to spend quality time and enjoy the company of the children. Furthermore, the children also have right to love and affection of both parents as well as grandparents. This is essential for personal development and overall well being of the children.
  11. On Thursday the Union Minister for Law and Justice Kiren Rijiju inaugurated the new premises of the Jammu & Kashmir International Arbitration Centre (JKIAC) at Srinagar. The Centre was inaugurated at the Old Sadder Court Complex at Lal Chowk in Srinagar in the presence of Jammu and Kashmir High Court Chief Justice Pankaj Mithal, judges of the High Court and members of the arbitration committee.
    • Union Minister for Law and Justice Kiren Rijiju said, “Arbitration is a very important tool for improvement in ease of doing business. Arbitration and mediation can provide better quality justice because the courts are already overburdened with cases,” 
    • Chief Justice Pankaj Mithal in his address touched upon the importance of alternate dispute resolution mechanism including arbitration in tackling the rising litigation in the country. He underscored the need of such institutions to ensure speedy and accessible justice not only to the citizens of the country but also the corporate world.
    • Rajeev Gupta, In-charge Coordinator of the JKIAC gave an overview of the structure and hierarchy of the JKIAC and highlighted its pattern of governance and administration.
    • Justice Sindhu Sharma, Chairperson of JKIAC, in her brief address tracked the history of arbitration in India and emphasised that the country needs to have arbitrators not only for arbitration centers but also at domestic and community levels to sort out the disputes arising there.
  12. The Union Minister for Law and Justice Kiren Rijiju inaugurated the Mega Legal Services Camp at Khanmoh in Srinagar to commemorate the birth anniversary of Dr. BR Ambedkar.
  13. Teachers in aided schools who have obtained Master’s degrees in science subjects from outside Kerala have approached the Kerala High Court challenging the constitutionality of the provisions of the Kerala Education Rules of 1959.  (Ranimol KJ & Ors. v State of Kerala & Ors.)
    • The Rules in question insist that those who obtained MSc degrees from outside Kerala must produce equivalency certificates from a university in Kerala to be considered for the post of Higher Secondary School Teacher (Junior).
    • the petition stated, Essentially this Rule mandates that M.Sc. degrees obtained from outside the state of Kerala should be accompanied with an equivalency certificate issued by any of the universities in Kerala stating that the M.Sc. degree obtained from a University outside kerala is equivalent to the M.SC. degrees offered in Kerala.
    • the petitioners have sought a declaration that Rule 6 (1) & Rule 6 (2) Chapter XXXII of the Kerala Education Rule 1959 in so far as it mandates equivalency of Master’s degree obtained from Universities outside Kerala with those of Master’s degree obtained from Universities in Kerala, is violative of Article 14, 10 and 21 of the Constitution.
  14. The Calcutta High Court reiterated that an arbitration agreement is not discharged by the death of a party and shall remain enforceable by or against the legal representatives of the deceased party provided the right to sue in respect of the cause of action survives.  (Dr Papia Mukherjee v. Aruna Banerjea and Another)
    • the applicant had executed a partnership deed for running a pathological laboratory namely, Calcutta Clinical Laboratory. The co-partner to the deed had executed the power of attorney in favour of his wife, Aruna Banerjea (respondent).
    • the Court observed, Having regard to the above circumstances of the case, I am of the opinion that the arbitration agreement in the form of partnership deed dated 20th of May, 1992 exists and after the death of Dr. Dhrubajyoti Banerjea, the respondents being his legal representatives are bound by the agreement to the extent provided by law. The dispute exists between the parties, hence present application under Section 11 of the Act is allowed.
    • In case of Ravi Prakash Goel v. Chandra Prakash Goel and Another (2007), the Supreme Court decision, “It is clear from Section 40 of the Arbitration Act that an arbitration agreement is not discharged by the death of any party thereto and on such death it is enforceable by or against the legal representatives of the deceased, nor is the authority of the arbitrator revoked by the death of the party appointing him, subject to the operation of any law by virtue of which the death of a person extinguishes the right of action of that person.”
  15. The Supreme Court held that a High Court cannot grant disproportionate and inadequate punishment to accused merely because of the long delay in deciding the appeal.  (State of Rajasthan v. Banwari Lal and ors.)
    • the Court said, Merely because a long period has lapsed by the time the appeal is decided cannot be a ground to award the punishment which is disproportionate and inadequate.
    • the Court observed, We have come across a number of judgments of different High Courts and it is found that in many cases the criminal appeals are disposed of in a cursory manner and by adopting truncated methods…..We deprecate such practice of disposing of criminal appeals by adopting shortcuts.
    • the Court said, Merely on the technical ground of delay and merely on the ground that after the impugned judgment and order, which is unsustainable, the accused have resettled in their lives and their conduct has since been satisfactory and they have not indulged in any criminal activity, is no ground not to condone the delay and not to consider the appeal on merits.
    • the Supreme Court said, The judgment and order passed by the High Court reducing the sentence is nothing but an instance of travesty of justice and against all the principles of law laid down by this Court in a catena of decisions on imposing appropriate punishment/suitable punishment.
    • the apex court ruled, Therefore, as such, the trial court had already taken a very lenient view while imposing the sentence of only three years’ rigorous imprisonment. Therefore, the High Court ought not to have interfered with the same.
    • the Bench emphasised, Discretion has to be exercised judiciously and the sentence has to be imposed proportionately and looking to the nature and gravity of the offence committed and by considering the principles for imposing sentence.
  16. The Aurangabad Bench of Bombay High Court observed while refusing to discharge a doctor booked for raping a minor and aborting her six-month-old foetus, Advancement in medical science enables determination of past pregnancy of a woman on the basis of changes in the body of the woman.  (Balwantrao Bhise v. State of Maharashtra & Anr.)
    • Before Justice Sewlikar, the accused claimed that there wasn’t any proof to show that the girl ever conceived or had undergone any abortion. At this, the High Court considered the testimony of the medical officer, who had examined the girl.
    • the judge noted, True it is that Medical Officer has declined to give any opinion about the past pregnancy of the victim as it is a very old case of pregnancy. However, medical examination record shows that hymen of the victim was ruptured.
    • the Court added, Medical science is so advanced that now a days past pregnancy also can be determined on the basis of changes in the body of a woman on account of pregnancy.
    • the judge said, The past pregnancy can be determined on account of the permanent changes in the body of a woman. Moreover there is oral evidence of victim’s mother stating that her daughter was pregnant of six months. Admittedly, there is delay of more than one year in lodging the FIR. However, the aspect of delay can be considered during trial. In such cases, women generally do not come forward to lodge the report soon after the incident.
    • the Court added, Moreover, victim was less than 17 years when the intercourse happened. After her alleged termination of pregnancy, she attained majority. In this view of the matter, I do not find that the trial court committed any error in dismissing the application for discharge of the applicant.
  17. The Karnataka High Court denied default bail to a person accused of having links to the terrorist organisation Islamic State of Iraq and the Levan (ISIS).  (Zuhab Hameed Shakeel Manna v. The National Investigation Agency)
    • The order extracted (order of trial court granting extension of judicial custody) contains detailed reasons assigned by the Special Public Prosecutor (SPP) while filing an application extracting the contents of the report of the Investigating Officer. Therefore it is not a case where the report or the opinion of the Investigating Officer or SPP suffers from want of application of mind.
    • In light of the statute (Unlawful Activities Prevention Act), the judgements of the Apex Court interpreting Section 43D(2)(b) of the Act, the report of the Investigating Officer, the application of the SPP and the order of extension of judicial custody, what would unmistakably emerge is that, the report of the Investigating Officer is in consonance with the provisions of the Act, so is the application filed by the SPP.
    • the Court said, Undoubtedly the request of an IO for extension of time is not a substitute for the report of the public prosecutor but since we find that there has been, as per the comparison of the two documents, an application of mind by the public prosecutor as well as an endorsement by him, the infirmities in the form should not entitle the respondents to the benefit of a default bail when in substance there has been an application of mind.

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