Today’s Legal Updates

Thursday, 17th March 2022

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Legal Awareness :- CONSTITUTION OF INDIA

Part – XII FINANCE, PROPERTY, CONTRACTS AND SUITS

CHAPTER – I FINANCE

General

Article – 264 Interpretation

In this Part, “Finance Commission” means a Finance Commission constituted under article 280.

Article – 265 Taxes not to be imposed save by authority of law.

No tax shall be levied or collected except by authority of law.

Article – 266 Consolidated Funds and public accounts of India and of the States.

(1) Subject to the provisions of article 267 and to the provisions of this Chapter with respect to the assignment of the whole or part of the net proceeds of certain taxes and duties to States, all revenues received by the Government of India, all loans raised by that Government by the issue of treasury bills, loans or ways and means advances and all moneys received by that Government in repayment of loans shall form one consolidated fund to be entitled “the Consolidated Fund of India”, and all revenues received by the Government of a State, all loans raised by that Government by the issue of treasury bills, loans or ways and means advances and all moneys received by that Government in repayment of loans shall form one consolidated fund to be entitled “the Consolidated Fund of the State”.
(2) All other public moneys received by or on behalf of the Government of India or the Government of a State shall be credited to the public account of India or the public account of the State, as the case may be.
(3) No moneys out of the Consolidated Fund of India or the Consolidated Fund of a State shall be appropriated except in accordance with law and for the purposes and in the manner provided in this Constitution.

Today’s Legal Updates :-

  1. The Supreme Court will examine whether the offence of “penetrative sexual assault” under Section 3(b) of the the Protection of Children from Sexual Offences (POCSO) Act will be attracted on the basis of the statement of a minor victim who said the accused “pricked her private parts”
    • the minor survivor’s mother against the verdict of the Kerala High Court which held that such a statement from the survivor would not establish penetrative sexual assault under Section 3(b) of the POCSO Act.
    • pertains to an incident where a man allegedly trespassed into the house of a 12-year-old girl and sexually assaulted her while she was watching television.
    • “Section 3. Penetrative sexual assault.- A person is said to commit “penetrative sexual assault” if-(b) he inserts, to any extent, any object, or a part of the body, not being the penis, into the vagina, the urethra or anus of the child or makes the child to do so with him or any other person;”
    • the High Court said, “In order to attract the offence under Section 3(b) of the POCSO Act, the prosecution should have a definite case that the accused had inserted his finger into the vagina of the victim girl. Cambridge Dictionary defines the word ‘insert’ to mean ‘to put something inside something else’. A case of insertion of a finger cannot, therefore, be inferred from the word ‘kutthi’ used by the victim girl,”
    • The High Court explained that it is fortified in its view because the POCSO Act categorises sexual offences under different heads such as, penetrative sexual assault, aggravated penetrative sexual assault, sexual assault, etc. and different punishments are provided for different offences, having regard to its gravity.
  2. The World Intellectual Property Organization (WIPO), on the occasion of International Day of Women Judges celebrated last Thursday, paid tribute to the important work of women judges in the field of intellectual property rights (IPR). Among the judges featured from across the globe was Justice Prathiba Singh of the Delhi High Court.
    • Justice Prathiba Singh said that she practiced for 25 years in the area of corporate IP law, alongside some pro bono litigation. This allowed her to build expertise in IP. It was when she realized that law is a very vast field, that she felt the need to be in a position to give back to society and be of service.
    • “Some of my non-court work as a judge has involved working on various committees and contributing to judicial administration, such as the recent creation of an exclusive IP Division in the Delhi High Court, which receives around 500 fresh IP cases each year – the highest across the country. I am very proud to have recently been appointed as one of two specialist IP judges in this Division, together with another colleague and woman judge, Justice Jyoti Singh,” 
    • “My grandmother taught me self-confidence and how to be independent. Judges in India provide very inspiring examples. Justice Ruma Pal, who is a retired judge of the Supreme Court of India, was an extremely competent judge, including in corporate disputes, and advocates were always very happy to submit complex cases before her. So she proved wrong the old stereotype that women lawyers and judges were suited to non-corporate areas of law, such as family disputes. There was also Justice Leila Seth, who was the first woman judge on the Delhi High Court, and the first woman Chief Justice of a state High Court. Internationally, I looked to Justice Ruth Bader Ginsburg of the US Supreme Court as a role model, not only for how she judged, but also for how she conducted her life through to her older age.”
    • “To be able to do justice and to solve people’s problems immediately, right then and there. This is a lot of responsibility, and it can be used to bring peace and harmony to people’s lives, whether in their families or in commercial disputes. The positive impact you can have as a judge makes the work so worthwhile.”
    • “For me, there are two important dimensions to IP: first, how the focus of innovation is to solve problems for humanity, such as by creating vaccines during this pandemic. And second, that IP aims, while solving problems for humanity, to make those innovative products accessible to society. I have always done my best to advance both innovation and access to innovation in unison – to protect IP and make it more accessible.”
    • “IP law is facing its biggest transformation due to the digital revolution. IP moves globally, and territorial boundaries are often broken in IP violations, which makes cases increasingly complex. There is also the overlap between IP law and competition law, which stand at two ends of a spectrum, and judges have the difficult task of applying the appropriate balance between the objectives of each.”
    • “I see that women make excellent judges, and are able to balance the many different challenges of judging very well, and to mould positive outcomes for each case, in all areas of law. Within the judicial system, the way women will grow is to ensure that they are not limited to hearing only certain types of matters – they should gain experience in judging across the board, including technical IP cases,” 
  3. A Delhi Court has rejected the bail plea of Gulfisha Fatima and Tasleem Ahmed in an Unlawful Activities (Prevention) Act case in connection with the northeast Delhi riots of February 2020. (State v. Gulfisha Fatima, Tasleem Ahmed)
  4. A petition has been filed before the Supreme Court challenging the Karnataka High Court ‘s Hijab judgment which held that Hijab is not an essential religious practice (ERP) of Islam and, thereby, upheld the power given to colleges to ban wearing of hijab in college campus.  (Sajeeda Begum vs State of Karnataka)
    • Begum contended that despite pressing the application and urging the High Court to hear the applicants-intervenors, the High Court did not implead them and did not allow them to urge their arguments and submissions, thereby violating the “principle of orality.”
    • “teenage girls covering themselves modestly while going to receive education pose no threat to public order.”
    • the issue of hijab as ERP under Article 25 is only the last resort of argument since the right to wear hijab arises out of Articles 14, 15, 17, 19 and 21 of the Constitution.
    • “The Government Order does not ban the hijab, and therefore, in view of the concession of the Advocate General which was rather in the nature of clarification of the Government Order, the High Court ought to have only decided the issue on plain aspect of administrative law,”
    • “The same subordinates them as a group including the petitioner who are wears hijab out of sincere belief of the mandatory prescription in Islam for whose violation she believes she would be accountable on the Judgment Day,” 
  5. On Monday the Indore Bench of the Madhya Pradesh High Court issued notice to the State government on a public interest litigation petition (PIL) assailing the constitutional validity of the MP Bhiksha Vritti Nivaran Adhiniyam, which criminalises begging. (Maatr Foundation v The State of Madhya Pradesh)
    • The petition has challenged the Act and Rules made under it for being violative of the right to equality, freedom of speech & expression, and the right to live with utmost dignity as laid down in the Constitution.
    • “It is based on the philosophy of first criminalising poverty, and then making it invisible by physically removing “offenders” from public spaces,”
    • “The Act follows a vicious colonial logic stemming from the Victorian era and seeks to remove the presence of beggars from public places lest their presence embarrass the State,”
    • The attention of the Court was brought to enormous funds allocated by the State to rehabilitate beggars. The petitioner, however, informed the Bench that when details were sought under the Right To Information (RTI) applications regarding the use of funds, all authorities failed to provide desired information and responded in a mechanical manner.
    • an order was sought by the Court declaring the entire Act and Rules under it unconstitutional. The petitioners also sought directions to the State to upload information related to beggars, their rehabilitation, funds allocated for the same and other information in public domain.
  6. The Delhi High Court has held that High Courts have the power of judicial review over the orders and judgments of Armed Forces Tribunals.  (Wing Commander Shyam Naithani v Union of India and Ors)
    • the Court said, “The argument that in view of Article 227(4) of the Constitution, the High Court has no power of judicial superintendence over the Armed Forces Tribunal is untenable as Article 227(4) only takes away the administrative superintendence of Courts over the Tribunal relating to armed forces. In, L.Chandra Kumar (supra) and Rojer Mathew (supra), it has been categorically held by the Supreme Court that the power of judicial superintendence has not and can never be taken away. Consequently, the power of judicial review under Articles 226 and 227 of the Constitution vests with the High Court even with regard to judgments and orders passed by the Armed Forces Tribunal and this power is a part of the basic structure of the Constitution as has been held in L.Chandra Kumar and Rojer Mathew,” 
    • “This Court finds that Section 14 of the Armed Forces Tribunal Act, 2007 itself explicitly stipulates that though the Tribunal has wide powers, yet it does not exercise the power of the Supreme Court or the High Court under Articles 226 and 227 of the Constitution of India. Consequently, the Armed Forces Tribunal Act, 2007 itself preserves the writ jurisdiction of the High Courts,” 
    • “The jurisdiction of High Court under Articles 226 and 227 of the Constitution cannot be bypassed merely by making a provision for direct appeal to the Supreme Court against an order of a Tribunal for the reason that the Apex Court exercises jurisdiction under Sections 30 and 31 of the Armed Forces Tribunal Act, 2007 only if a point of law of general public importance is involved,” 
    • “This Court would like to emphasise, with all the power that it commands, that judicial restraint should be exercised when the reasons that a tribunal gives for its decision are being examined. Further, the writ jurisdiction of High Court cannot be exercised ‘in the cloak of an appeal in disguise,”
  7. On Tuesday the Delhi High Court directed former Janata Dal (United) president Sharad Yadav to hand over to the Central government the official bungalow allotted to him while he was a Member of Parliament.  (Shri Sharad Yadav v Shri Ram Chandra Prasad and Anr)
    • the Court said, “The provisions of the perks, including the residential accommodation to the Members of Parliament, or for that matter, to any other functionary of the State, are so provided so as to enable the functionary to discharge his or her functions efficiently. These are the perks that are attached to the office and are not personally conferred upon any person that dehors the office,”
  8. On Tuesday the Supreme Court dismissed a review petition against its 2021 order that ruled that a Magistrate does not have the jurisdiction to extend the deadline for completion of investigation and filing of chargesheet in cases under the Unlawful Activities Prevention Act (UAPA).  (State of Madhya Pradesh v. Sadique and Others)
    • “In so far as ‘extension of time to complete investigation’ is concerned, the Magistrate would not be competent to consider the request and the only competent authority to consider such request would be ‘the Court’ as specified in the proviso in Section 43-D (2)(b) of the UAPA,”
    • “After considering various provisions of the relevant statues, it was concluded (in Bikramjit) that “so far as all offences under the UAPA are concerned, the Magistrate’s jurisdiction to extend time under the first proviso in Section 43-D (2)(b) is nonexistent,”
  9. Last Week the Punjab and Haryana High Court took a serious view of the practice of filing a second bail application before trial court/ sessions court during the pendency of bail application before High Court by the same accused without disclosing such pendency. (Kulwant Singh @ Sajan v State of Punjab)
    • The Punjab & Haryana High Court took note of the practice of petitioners filing bail applications before the Sessions Judge during pendency of similar applications before the High Court.
    • Serious view was taken of this misconduct, and the Court examined whether it should cancel the bail of the petitioners who had defaulted or impose costs.
    • Finding that suppression of material facts would remain subservient to the right of liberty under Article 21, the bail orders were not interfered with.
    • However, costs were imposed on petitioners.
    • Directions were issued to prevent the wrongful practice in the future.
  10. The Dharwad Bench of the Karnataka High Court has reiterated that caste certificate is different from income certificate and cannot be treated alike.  (The Selection Authority and Secretary v. Geetha Dattatreya Gokarn)
    • quashed an order of the State Administrative Tribunal that had directed the Karnataka High School Examination Board to consider a application for a teacher’s post, despite her not having submitted a valid creamy-layer certificate within the prescribed time limit.
    • the Court said, “The income may increase or decrease, depending on his avocation/ profession or employment. Government servants/ employees or salaried class would have a steady increase in their income from year to year. For professionals, businessmen and such persons in other avocation income may increase or decrease,”
    • “Caste Certificate and Income Certificate issued under 1990 Act are two different and distinct certificates. Both certificates cannot be treated alike. In respect of caste certificate, for example, if a person is Scheduled Caste or Scheduled Tribe, he is so by birth and not by any subsequent event or development. A caste certificate issued by the competent authority is only an affirmation of fact which is in existence, i.e., caste status. But in so far as Income certificate issued by the competent authority is concerned, depends on the income of the parents of a candidate concerned existed as on the date of issuing such certificate.”
  11. Today the Kerala High Court issued a slew of directions with regard to the requirement of setting up Internal Complaints Committee (ICC) in organisations and production units in the film industry and political parties.  (Women in Cinema Collective v State of Kerala & Ors.)
    • apart from production houses which directly employ actors, even organisations related to the film industry have to maintain ICC, if they are engaging 10 workers or more for managing the office establishments and wherein women workers are employed for wages.
    • the Court said, “(This) would definitely render sufficient confidence to women Actor Artists and other employees & other workers employed by the production unit ; which would in turn protect the dignity, and make the right to life and personal liberty of the women in the film industry more meaningful and fruitful,”
    • “These organisations have their own structure, in which employees are there and therefore, if there are any women employees employed by such organisations, they are duty bound to constitute an Internal Complaints Committee, if the employees are exceeding 10 in number in contemplation of section 4 r/w. Section 6 of the Act, 2013. 57”
    • The Court passed the judgement in a group of Public Interest Litigation petitions filed by various organisations seeking to constitute a grievance redressal mechanism against sexual harassment as per the directions of the Supreme Court in Vishakha v. State of Rajasthan and in accordance with the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 (POSH Act)
    • The judgement of the Court laid down the following guidelines for different organisations :
      • The production unit of each film industry is an establishment employing actor artists and other workers and therefore, such production units have to maintain an Internal Complaints Committee, if they are engaging more than 10 workers, as is contemplated under the Act, 2013.
      • Respondent organisations, apart from the political parties, are duty bound to maintain Internal Complaints Committee, if they are engaging 10 workers or more for managing the office establishments and wherein women workers are employed for wages or not.
      • If women workers are employed by any of the respondent organisations related to the film industry in which less than 10 workers are employed, then they are entitled to make suitable complaints to the Local Complaints Committee in accordance with the provisions contained under section 6 read with Section 9 of Act, 2013.
      • Since the Association of Malayalam Movie Actors (AMMA) has volunteered to appoint a committee to deal with any sexual harassment at its workplace, we record the same and accordingly to take action to notify the members of the Internal Complaints Committee, in accordance with law.
      • From the discussions made above, we find that the political parties, which are not having any employer-employee relationship with its members and which are not carrying on with any private venture, undertaking, enterprises, institution, establishment etc. in contemplation of a ‘workplace’ as defined under section 2(o)(ii) of Act, 2013, are not liable to make any Internal Complaints Committee.
      • In all other cases, a woman employee subjected to sexual harassment is entitled as of right to file any complaint of sexual harassment before the Local Committee in contemplation of the provisions of the act, and under section 9 r/w. Section 6 of Act, 2013.
  12. Today the Kerala High Court reserved its verdict on an appeal moved by parishioners of St Mary’s Syrian Orthodox Cathedral at Piravom, previously with the erstwhile Jacobite faction, against a single-judge order that refused to intervene in the consecration of new catholicos of the Malankara Orthodox Syrian Church without canonically inviting the Patriarch of Antioch. (KA John & Anr v. State of Kerala & Ors.)
  13. Today the Kerala High Court quashed charges under the Unlawful Activities Prevention Act (UAPA) and sedition (Section 124A of Indian Penal Code) against an alleged member of the Communist Party of India (Maoist on the ground that there was delay by the State government in issuing sanction under Section 45 of the UAPA.  (Roopesh v. State of Kerala)
    • Amidst the raging controversy as to the retention of offence of sedition in the IPC; which the naysayers categorise as a relic of the colonial past; a symbol of British hegemony and the votaries support in the wake of rising anti-national feelings under the cloak of liberal thought, the Government sat over a sanction for six months, violating the time frame prescribed in the rules.
    • When sanction is statutorily mandated for taking cognizance and if cognizance is taken without a sanction or on the strength of an invalid one, it cannot be said to be an erroneous proceeding taken in good faith and the act of taking cognizance itself would stand vitiated.
    • When the cognizance taken, of the offences under the UA(P)A, is held to be without jurisdiction, for want of valid sanction, then there is no question of a valid trial being held by the Special Court into any offence under the IPC.
    • It is very clear that the legislators learned from the experience and worked on the information, about the actual working of the enactments, which brought drastic consequences to those accused of the offence of a terrorist or disruptive act. The sanction required by the TADA from the higher echelons of Police was found to be insufficient to curb the evil of misuse and hence, by POTA the requirement was upgraded to one from the Government itself. After repeal of the POTA, the UAPA, strengthened with the amendments in 2004, continued with Section 45, which prohibited cognizance by any Court; of offences under Chapter III, without a sanction from the Central Government or the authorised officer and under Chapters IV & VI without the sanction of either the State Government or the Central Government, as appropriately required.
    • The procedure for a recommendation from an Authority constituted and a further sanction from the appropriate Government ensures and warrants an objective consideration of the requirement to prosecute. The various offences vary in content and essence and without even a mention of the act complained of, the offence alleged or even the precise provision, the Government has made a cryptic statement which falls short of a satisfaction entered, with due application of mind.
  14. Today the Bombay High Court set aside an arbitral award that upheld the cancellation of media rights by the Board of Control for Cricket in India (BCCI) to World Sport Group (India) for telecast of the Indian Premier League (IPL) outside the Indian subcontinent.  (World Sport Group (India) Private Ltd v. Board of Control for Cricket in India)
    1. High Court’s observations
      • it is trite law that a party cannot be permitted to approbate and reprobate at the same time. A party cannot be permitted to blow hot and cold, fast and loose or approbate and reprobate. When one party knowingly accepts the benefits of a contract, it is estopped by denying the validity and binding effect of that contract on him. Once a party takes advantage of any instrument, he must accept all that is mentioned in the said document.
      • Such an Award with the greatest of respect to the arbitrators who passed the majority award, cannot be allowed to stand.

Friday, 18th March 2022

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  1. Today A Full Bench of the Madras High Court held that challenges to orders of suspension should be analysed based on the facts of each case, after considering the gravity of the charges and rules applicable. (P Kannan v The Commissioner for Municipal Administration)
    • the court should analyze each case on its facts when a challenge to the order of suspension has been made.
    • taking note of the facts and if paragraphs (21) and (22) are read together it would become clear that even the Apex Court has not applied the direction given in paragraph (21) in view of the filing of the charge-sheet during the pendency of the appeal or litigation before the court.
    • For instance, when an employee makes an allegation of rape against a co-employee, followed by registration of criminal case, then merely for the reason that charge-sheet could not be submitted within three months if the order of suspension is revoked with a direction to post the employee in a non-sensitive post, it may have serious repercussions.
  2. The Delhi High Court dismissing a bail application in a drugs case held that courts need to be conscious of the legislative intent behind passing the Narcotic Drugs and Psychotropic Substances (NDPS) Act.  (Vikas Kumar v State)
    • Such offences have a cascading effect and are in vogue these days, thus destroying the capabilities and lives of a big chunk of the population and trend has been growing over the years. Therefore, in order to prevent the devastating impact on the people of the nation, Parliament in its wisdom deemed it fit to introduce stringent conditions for grant of bail under the Act. The Court has to stay mindful of the legislative intent and mandate of the Act while granting bail in such matters.
    • Both the conditions are interlinked because the Parliament in its wisdom, intends that in cases where there is a possibility of commission of this grave offence under the Act, the person need not be released. It is so because if the person is released, he is most likely to repeat the offence, thus impacting the society at large. Thus, to not give any leeway to the accused, the Court must be satisfied about the dual conditions on reasonable grounds.
  3. The Kerala High Court Advocates’ Association (KHCAA) will consider the setting up of an Internal Complaints Committee (ICC) in accordance with the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 (POSH Act).
    • KHCAA will convene an Extra Ordinary General Body Meeting on March 22 to consider, among other things, a resolution to set up the ICC.
    • Having regard to the Constitutional right of gender equality and right to practice profession, it is imperative to formulate a mechanism which aims at prevention of sexual harassment of women in legal profession.
    • the KHCAA may pass a resolution in the following manner :
      • Resolve to formulate and constitute an Internal Committee as contemplated under POSH Act to address the complaint of sexual harassment against women members and other aggrieved women in its precincts.
      • Resolve that a comprehensive mechanism be formulated for inquiry into allegations of sexual harassment and to take appropriate disciplinary action against the members who are found guilty.
      • Resolve and authorize the Executive Committee of KHCAA to make necessary changes and amendments in the Rules and Regulations, 1971 of the Kerala High Court Advocates Association for the effective implementation of the different provisions of POSH Act.
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