Today’s Legal Updates
Wednesday, 16th March 2022
Legal Awareness :- CONSTITUTION OF INDIA
Part – IVA FUNDAMENTAL DUTIES
Article – 51A Fundamental duties
It shall be the duty of every citizen of India—
(a) to abide by the Constitution and respect its ideals and institutions, the National Flag and the National Anthem.
(b) to cherish and follow the noble ideals which inspired our national struggle for freedom.
(c) to uphold and protect the sovereignty, unity and integrity of India.
(d) to defend the country and render national service when called upon to do so.
(e) to promote harmony and the spirit of common brotherhood amongst all the people of India transcending religious, linguistic and regional or sectional diversities; to renounce practices derogatory to the dignity of women.
(f) to value and preserve the rich heritage of our composite culture.
(g) to protect and improve the natural environment including forests, lakes, rivers and wild life, and to have compassion for living creatures.
(h) to develop the scientific temper, humanism and the spirit of inquiry and reform.
(i) to safeguard public property and to abjure violence.
(j) to strive towards excellence in all spheres of individual and collective activity so that the nation constantly rises to higher levels of endeavour and achievement.
(k) who is a parent or guardian to provide opportunities for education to his child or, as the case may be, ward between the age of six and fourteen years.
Today’s Legal Updates :-
- Today the Karnataka High Court dismissed a public interest litigation (PIL) petition praying that in criminal cases, a copy of the chargesheet should be provided to the complainant/informant before it is submitted to the concerned court. (Amar Correa v. State of Karnataka and Ors)
- Chief Justice Ritu Raj Awasthi and Justice SR Krishna Kumar termed the PIL ‘misconceived’, and imposed costs of ₹50,000 on the lawyer, who appeared in-person, for wasting the Court’s time.
- It is not the requirement of law that the investigating officer shall first handover the copy of the police report to the complainant/informant and only thereafter, submit it to the competent court. The petitioner appearing in person has not been able to show any material on record to establish that the complainant/informant has been denied the copy of the police report when the said complainant/informant has approached the Court for that purpose.
- Today the International Court of Justice (ICJ) at The Hague, Netherlands passed a provisional measure directing the Russian Federation to suspend military operations in the territory of Ukraine. (Ukraine v Russian Federation)
- Provisional Measures sought by Ukraine
- The Russian Federation shall immediately suspend the military operations commenced on 24 February 2022 that have as their stated purpose and objective the prevention and punishment of a claimed genocide in the Luhansk and Donetsk oblasts of Ukraine.
- The Russian Federation shall immediately ensure that any military or irregular armed units which may be directed or supported by it, as well as any organizations and persons which may be subject to its control, direction or influence, take no steps in furtherance of the military operations which have as their stated purpose and objective preventing or punishing Ukraine for committing genocide.
- The Russian Federation shall refrain from any action and shall provide assurances that no action is taken that may aggravate or extend the dispute that is the subject of this Application, or render this dispute more difficult to resolve.
- The Russian Federation shall provide a report to the Court on measures taken to implement the Court’s Order on Provisional Measures one week after such Order and then on a regular basis to be fixed by the Court.
- Summary of Ukrainian government’s arguments
- Russia would have the world believe that Ukraine launched a war against its own people in Donbass. These are false claims of genocide made by Russia.
- Russia was desperate to manufacture a casus belli (cause for war). President Vladimir Putin recognised Donetsk People’s Republic and Luhansk People’s Republic, laid the groundwork for ongoing war.
- Russia is invoking provisions of the Convention on the Prevention and Punishment of the Crime of Genocide as a legal shield to perpetuate atrocities in Ukraine.
- Ukraine demands good faith implementation of the Genocide Convention. Russia has a duty not to act to prevent genocide, simply because no genocide exists.
- Russian forces are targeting civilians in Ukraine; urgent situation requires the passing of provisional measures.
- Mariupol continues to live without water, electricity and heating as the result of the constant shelling. Today it is Mariupol; tomorrow it could be Kharkiv or Kiev.
- Russia’s actions also have an environmental impact of Ukraine and neighbouring countries. A full scale military operation implies irreversible environmental harm.
- There is no doubt that unless this Court acts now, irreparable prejudice will be caused to the Ukrainian people until the Court gives it final decision.
- Neighbouring countries may be destabilised as a result of the humanitarian crisis in Ukraine. The harms already suffered by the Ukrainian people will recur and intensify until Russia has reached its goal, whatever that may be.
- All three prerequisites for the indication of provisional measures are fulfilled.
- Whether or not Russia chooses to appear in these proceedings, it should be obligated to follow the measures indicated by the Court.
- The tragedy being witnessed in the cities of Ukraine was precisely what our modern international legal system was designed to prevent.
- Provisional Measures sought by Ukraine
- Today the Kerala High Court declared that even when one parent of a minor born in India is not an Indian Citizen, the child is entitled to be issued an Indian Passport.
- a minor who has acquired citizenship by birth as per Section 3 of the Citizenship Act, 1955 cannot be regarded as a stateless child by reason of her mother being an American citizen.
- Law abhors such statelessness of children. The comity of nations ensures that every person must have a nationality so that all rights accrue to that individual as a national of that particular country. Though nationality and citizenship are not synonymous terms, the concept of nationality cannot be ignored while considering the citizenship of a minor child, especially when the statute confers citizenship by birth.
- The right of every child to acquire a nationality is guaranteed under Article 7 of the Convention, which obliges every party State to implement this right and under Article 8 to protect and preserve the nationality of every child. India, as a party State to the Convention on the Rights of the Child, (by virtue of its ratification in December 1992) has an obligation that no child is left stateless.
- Petitioner’s right to travel, her right to enjoy her nationality and her right to enjoy her citizenship cannot be ignored.
- Three main issues were considered by the Court and answered as follows:
- Whether the consent of both parents are required to issue a passport to a minor child?
- Though in earlier times, there was ambiguity and confusion regarding the procedure to be adopted when consent of both parents could not be obtained, by virtue of several precedents, it has been provided that, if an affidavit is filed in the form of Annexure-C of Schedule III of the Passport Rules, 1980, the passport issuing authority can issue a passport to a minor child, without insisting upon the consent of both parents.
- Therefore, even if one of the parents of a minor child refuses to give consent, the passport issuing authority is entitled to issue a passport to a minor, provided Annexure-C is submitted.
- Whether the minor child is disentitled to get an Indian passport, if one of the parents is a citizen of another country?
- Section 3(1)(c)(ii) of the Citizenship Act reveals that a person born in India becomes a citizen of India by birth, even if only one of his parents is an Indian citizen, provided the other conditions mentioned in the sub-section are not applicable.
- The petitioner was born in India and her father was a citizen of India not only at the time of birth of the petitioner but is one, even at present. Petitioner has also not terminated her citizenship under section 9 of the Citizenship Act, the Court noted.
- Being born in India, the petitioner’s domicile of origin is India. The domicile of origin is a concept of law and clings to a person until he abandons it by acquiring a new domicile of choice as held by the Kerala High Court in Govindan v Bharathi and Sindhu George v Passport Officer, Ekm. & Anr.
- In such circumstances, the petitioner is entitled to be treated as an Indian citizen.
- Whether the passport can be issued mentioning only the name of the legal guardian?
- Though the biological father has been given visitorial rights, that right is at the convenience of the parties and the father submitted in Court that he has no objection to the child being taken abroad by the mother, and to live there. None of the parties could bring to the notice of this Court any legal prohibition in incorporating the name of a non-citizen as the legal guardian in the passport of a minor child.
- Therefore, the Court held that the petitioner is entitled to be issued an Indian passport with the name of her mother endorsed not only as a mother but even as the legal guardian in the passport to be issued.
- The Court also had a few words of praise for the biological father of the petitioner for his willingness to send his child abroad to live with her mother in her best best interests.
- Whether the consent of both parents are required to issue a passport to a minor child?
- The aforementioned willingness expressed by the father of the petitioner is indeed creditworthy, indicative of the parent acting in the interests of the welfare of the child and worthy of emulation by other similar parents.
- The National Legal Services Authority (NALSA) disposed of more than 77 lakh cases in the first Lok Adalat of 2022 held on March 12.
- Justice UU Lalit, the Executive Chairman of NALSA said, “Quick and affordable access is key to success of Lok Adalat,”
- The NALSA has changed its management approach and has adopted a synthesis of top-down and bottom-up approach. Virtual mode of communication was put to the best use during the COVID-19 Pandemic.
- Some of the statistics from the National Lok Adalat held in March 2022 are:-
- Resolution of a 30-year-old property dispute in Rajasthan where litigating son touched the feet of his mother.
- In Mysore, a 53-year-old partition suit was settled amicably. This suit was among the children of original propositus T. Lakshminarayana Upadhyay. The suit was filed in 1967 claiming share in property including share in the amount to the tune of ₹64,00,000. The final decree proceedings were initiated in the year 1982. There were 40 parties and 10 lawyers, Conciliation proceedings were greatly infused with the principle that the female children are equally entitled to share alike sons.
- In Solapur, Maharashtra, the Lok Adalat Panel was successful in resolving a 50 years old criminal case filed in 1972.
- Today A Mumbai Sessions Court pulled up the Maharashtra government for what it considered as ‘political intervention’ in the case against Union Minister Narayan Rane and Member of Maharashtra Legislative Assembly Nitesh Rane in relation to alleged defamation of late Disha Salian, former manager of late actor Sushant Singh Rajput.
- The applicants are said to have been interrogated for considerable duration, as sought to be impressed upon, by the learned counsel for the applicants. The State machinery engaged the services of Special Public Prosecutor. These factors, apart from some other factors, which are not being dealt with herein, prima-facie depict an unprecedented manner of dealing with the alleged crime, by the State machinery. That leads this court to find some substance in the canvassed at the instance of the applicants, that there has been some political intervention.
- Judge Baghele said, “The police machinery or any other investigating agency is not expected to act as a tool in the hands of Government, but is expected to work without fear and favour, while discharging its function of investigation. It is unfortunate that the investigating agencies have to function under governments. There is the need for the State, to ensure that the investigating agency becomes totally independent, so as to reach the goal of justice, enshrined in the Constitution of India,“
- The nature of the allegations does not ipso-facto speak of the gravity of the alleged crime, as sought to be impressed upon… Indisputedly, the applicants are liable to be dealt with in accordance with law, in relation thereto. However, notwithstanding the same, the custodial interrogation of the applicants is not at all warranted, in relation to those allegations.
- The alleged abstention from answering the questions by the applicants, in relation to some other alleged crime, cannot amount to their non-co-operation, qua the crime in question.
- They were accused under offences punishable under Sections 211 (false charge of offence), 500 (defamation), 504 (intend to provoke breach), 509 (insult to modesty), 506 II (criminal intimidation) and 34 (common intention) of Indian Penal Code (IPC) read with Section 67 (transmit of obscene material) of the Information Technology Act, 2000 against them.
- Yesterday the Meghalaya High Court directed the North East Indira Gandhi Regional Institute of Health & Medical Sciences (NEIGRIHMS) to allow a physical counselling session to an aspirant whose video-conferencing link for the same went into the spam box of her email account. (Bisakha Geonka vs NEIGRIHMS and anr)
- Today the Delhi High Court allowed full reopening of the mosque at Nizamuddin Markaz for the upcoming festival of shab-e-barat. (Delhi Waqf Board Through its Chairman v Government of NCT of Delhi and Anr)
- Today the Supreme Court rejected the plea of Religare promoter, Shivinder Mohan Singh seeking temporary bail to visit his ailing mother. (Directorate of Enforcement v. Shivinder Mohan Singh)
- Today the Supreme Court allowed the National Commission for Protection of Child Rights (NCPCR) to submit documents in a sealed cover in an Interlocutory Application (IA) filed by it in the Lavanya suicide case from Tamil Nadu’s Thanjavur.
- Today the Chhattisgarh High Court held that if there is a conflict between the personal law to which a minor is subject, and the consideration of a minors’ welfare, the latter must prevail. (Irfan Ur Rahim Khan v Farha Khan)
- the children’s choice in a custody dispute, while emphasising that children cannot be treated as a commodity in a battle between the father and mother.
- “If there is a conflict between the personal law to which the minor is subject and the consideration of the minors’ welfare, the latter must prevail. Likewise where the provisions of law are in conflict with the provisions of Guardians and Wards Act, the latter will prevail,”
- “Can we ignore the welfare of the minor children by accepting the submission of the appellant that oral evidence would be excluded? Certainly the answer would be in negative,”
- “The custody battle of children requires a human touch apart from the statutory obligation, therefore, we are of the view that the children’s wish and will would prevail over,”
- “It held that the communication will help in maintaining and improving the bond between the children and the parent who is denied the custody. If that bond is maintained, the children will have no difficult in moving from one home to another during vacation or holidays,”
- Today the Supreme Court held that a “daughter is not entitled to any amount” from her father for her education or marriage if she “does not want to maintain any relationship” with him.
- the daughter is 20 years old and is free to choose her path but since she does not want to maintain any relationship with the father, she cannot demand any money from him for education.
- the Court said, In so far as the daughter’s expenses for education and marriage are concerned, it appears from her approach that she does not want to maintain any relationship with the appellant and is about 20 years of age. She is entitled to choose her own path but then cannot demand from the appellant the amount towards the education. We, thus, hold that the daughter is not entitled to any amount.
- It is not even possible for the parties to sit across the table or to even talk over telephone to come to a reasonable understanding. There remains no doubt about irretrievable breakdown of marriage in the facts of the present case.
- But while determining the amount to be paid as permanent alimony to the respondent, we are still taking care to see that if the respondent so desires to support the daughter, funds are available.
- the top court fixed the permanent alimony of the respondent, at present being paid at ₹8,000 per month as interim maintenance, at ₹10 lakh in full and final settlement of all claims.
- Today the National Green Tribunal (NGT) at New Delhi took suo motu cognisance of a report outlining the damage to the Himalayas owing to unregulated tourism activities.
- Today Union Minister Narayan Rane and Member of Maharashtra Legislative Assembly Nitesh Rane were granted anticipatory bail by a Mumbai court in connection with a case registered against them based on complaint by the parents of late Disha Salian, former manager of late actor Sushant Singh Rajput.
- Today the Supreme Court issued notice in a plea moved by family members of the deceased in the Lakhimpur Kheri killings, seeking cancellation of bail granted to prime accused Ashish Mishra.
- Today the Supreme Court refused an early hearing of the appeals against the Karnataka High Court verdict which effectively upheld the ban on wearing hijab in educational institutions in the State.
- Today the Supreme Court upheld the One Rank One Pension (OROP) scheme introduced by the Central government through its notification of November 7, 2015. (Indian Ex-Servicemen Movement (An All India Federation of Military Veterans Organization Represented v. Union of India Department of Ex-Servicemen Welfare Ministry of Defense Secretary)
- Today Arpita Sen, former Executive Vice-President at Hinduja Global Solutions, is joining Intel India as Associate General Counsel and Head of Business Legal at Intel India.
- On Monday the Meghalaya High Court stated that the Value Added Tax (VAT) exemption granted to bread in the State cannot be extended to rusk as rusk is different from bread.
- Yesterday the Supreme Court held that a wrong order or action does not warrant starting disciplinary proceedings by High Court against judicial officers. (Abhay Jain vs The High Court of Judicature of Rajasthan and Anr)