Monday, 18th December 2023

The Constitution is not a mere Lawyers Document, it is a Vehicle of Life, and its Spirit is always the Spirit of Age.

Notes: – UN predicts groundwater level in India will reduce to ‘low’ by 2025.’

Legal Awareness: – CONSTITUTION OF INDIA

Part – XVIII EMERGENCY PROVISIONS

Article – 352 Proclamation of Emergency.

  1. If the President is satisfied that a grave emergency exists whereby the security of India or of any part of the territory thereof is threatened, whether by war or external aggression or armed rebellion], he may, by Proclamation, make a declaration to that effect in respect of the whole of India or of such part of the territory thereof as may be specified in the Proclamation.
    Explanation.—A Proclamation of Emergency declaring that the security of India or any part of the territory thereof is threatened by war or by external aggression or by armed rebellion may be made before the actual occurrence of war or of any such aggression or rebellion, if the President is satisfied that there is imminent danger thereof.
  2. A Proclamation issued under clause (1) may be varied or revoked by a subsequent Proclamation.
  3. The President shall not issue a Proclamation under clause (1) or a Proclamation varying such Proclamation unless the decision of the Union Cabinet (that is to say, the Council consisting of the Prime Minister and other Ministers of Cabinet rank appointed under article 75) that such a Proclamation may be issued has been communicated to him in writing.
  4. Every Proclamation issued under this article shall be laid before each House of Parliament and shall, except where it is a Proclamation revoking a previous Proclamation, cease to operate at the expiration of one month unless before the expiration of that period it has been approved by resolutions of both Houses of Parliament:
    • Provided that if any such Proclamation (not being a Proclamation revoking a previous Proclamation) is issued at a time when the House of the People has been dissolved, or the dissolution of the House of the People takes place during the period of one month referred to in this clause, and if a resolution approving the Proclamation has been passed by the Council of States, but no resolution with respect to such Proclamation has been passed by the House of the People before the expiration of that period, the Proclamation shall cease to operate at the expiration of thirty days from the date on which the House of the People first sits after its reconstitution, unless before the expiration of the said period of thirty days a resolution approving the Proclamation has been also passed by the House of the People.
  5. A Proclamation so approved shall, unless revoked, cease to operate on the expiration of a period of six months from the date of the passing of the second of the resolutions approving the Proclamation under clause (4):
    • Provided that if and so often as a resolution approving the continuance in force of such a Proclamation is passed by both Houses of Parliament the Proclamation shall, unless revoked, continue in force for a further period of six months from the date on which it would otherwise have ceased to operate under this clause:
    • Provided further that if the dissolution of the House of the People takes place during any such period of six months and a resolution approving the continuance in force of such Proclamation has been passed by the Council of States but no resolution with respect to the continuance in force of such Proclamation has been passed by the House of the People during the said period, the Proclamation shall cease to operate at the expiration of thirty days from the date on which the House of the People first sits after its reconstitution unless before the expiration of the said period of thirty days, a resolution approving the continuance in force of the Proclamation has been also passed by the House of the People.
  6. For the purposes of clauses (4) and (5), a resolution may be passed by either House of Parliament only by a majority of the total membership of that House and by a majority of not less than two-thirds of the Members of that House present and voting.
  7. Notwithstanding anything contained in the foregoing clauses, the President shall revoke a Proclamation issued under clause (1) or a Proclamation varying such Proclamation if the House of the People passes a resolution disapproving, or, as the case may be, disapproving the continuance in force of, such Proclamation.
  8. Where a notice in writing signed by not less than one-tenth of the total number of members of the House of the People has been given, of their intention to move a resolution for disapproving, or, as the case may be, for disapproving the continuance in force of, a Proclamation issued under clause (1) or a Proclamation varying such Proclamation,—
    1. to the Speaker, if the House is in session; or
    2. to the President, if the House is not in session, a special sitting of the House shall be held within fourteen days from the date on which such notice is received by the Speaker, or, as the case may be, by the President, for the purpose of considering such resolution.
  9. The power conferred on the President by this article shall include the power to issue different Proclamations on different grounds, being war or external aggression or armed rebellion or imminent danger of war or external aggression or armed rebellion], whether or not there is a Proclamation already issued by the President under clause (1) and such Proclamation is in operation.

Today’s Legal Updates: 

  1. On Monay the Lok Sabha passed the Post Office Bill, 2023 to replace the Indian Post Office Act of 1898.
    • The Bill was introduced in the Rajya Sabha on August 10 during the Monsoon Session before being passed by the upper house on 4th December.
    • Section 9 of the proposed legislation allows the Central government to empower any officer to intercept, open, or detain mail in the interest of the security of the State, friendly relations with foreign states, public order, emergency, public safety or on contravention of the law.
    • Section 10 stipulates that the Post Office administered by the Central government will not be liable for lapses in service except for the liability prescribed by the Central government itself.
    • Congress MP Shashi Tharoor voiced his concerns over the power of interception, asserting that it violates the right to freedom of speech and expression, and right to privacy of individuals as recognised by the Supreme Court as part of Article 21 in Justice KS Puttaswamy (Retd) vs Union of India.
  2. On Monay the Madras High Court said that all those who have been demanding that Tamil be made the official language for all communication and pleadings before the Court, should start by helping translate the court’s judgements and orders into Tamil.
    • Justice G Jayachandran was hearing a petition filed by some lawyers seeking a direction to the Greater Chennai police to permit them to go on an “indefinite fast” to make Tamil the official language of the Court.
    • Justice Jayachandran said, How will going on a fast help? There is no point in adopting these methods. If some lawyers begin finding the exact translation for the English legal terms, maxims and doctrines in simple and understandable Tamil and start using them to argue their cases, automatically the language will come to be accepted by courts. Help in translating judgements, start arguing in Tamil before judges who are conversant with the language and can read and write and this way, automatically Tamil will become one of the accepted languages in Court.
  3. Recently the Jammu & Kashmir and Ladakh High Court allowed a Kashmir resident to open the windows of his house more than five years after a civil court restrained him from doing so while upholding his neighbour’s claim.  (Ghulam Nabi Shah v. Abdul Gani Sheikh & Ors)
    • Justice Atul Sreedharan held that the civil court’s order failed to reflect how and what right of the petitioner’s neighbour was being violated.
    • the Court said, Undoubtedly, the petitioner has a right of opening of windows on his property even if they are facing towards the house of the plaintiff/respondent.
    • the Court said, The contention of the respondents that it would infringe upon the privacy, does not hold water as that is an issue for the defendant/respondent to take necessary steps to ensure their own privacy.
    • The Court added the neighbour can protect his privacy “by placing curtains on their windows or by raising a wall on their property which would make their house invisible from the property of the petitioner.”
    • The case originates from a civil suit filed by a resident of Budgam district against his neighbour. There had been three issues before the civil court:
      • As per the neighbour, the sloping roof of the petitioner’s then under construction house would fall toward his house and snow would come cascading down into his property.
      • The neighbour was also aggrieved that drain pipes were positioned by the petitioner in such a manner that the water would flow on their property and weaken the soil.
      • The third issue was that opening of windows towards the property of the neighbour would infringe upon his privacy.
  4. Recently the Punjab and Haryana High Court took critical note of the casual manner in which special laws such as the Unlawful Activities (Prevention) Act, 1967 (UAPA) and Prevention of Money Laundering Act, 2002 (PMLA) were invoked by the police in a case involving allegations of police officers supplying arms to Naxalites.
    • Justice Jagmohan Bansal noted that such special Acts were invoked in this case even without understanding their scope.
    • the judge said, These are special Acts and cannot be invoked by writing a letter by SSP. This shows that on the one hand, there were serious allegations against the erring police officials and on the other hand, a casual approach was adopted which resulted in the acquittal of the officials. Apart from invoking UAPA and PLMA, provisions of the Arms Act, 1959 were invoked.
    • The Court noted that the petitioners underwent both departmental and criminal proceedings based on the same set of allegations that were faced by other co-accused officers who were taken back into service.
  5. Toay A plea has been filed before the Supreme Court seeking a probe under the supervision of a retired Supreme Court judge into the recent Parliament security breach involving disruption of Lok Sabha proceedings and the hurling of gas canisters inside the House on 13th December.
    • the PIL stated, It was a complete security lapse as the smoke could have been poisonous more or in place of smoke canisters they could have entered with lethal ammunition which is very much shocking that when a highest house (temple) of the nation wherein the future of the nation is decided, is under stake then the citizens of India are also under stake, resulting the judicial interference.
    • it was submitted, independent, credible and impartial Judicial investigation under Supervision of Retired Supreme Court Judge into the matter of major security breach on 13.12.2023 into the lower house of Parliament.
  6. On Monay Dr. Ruvais has moved the Kerala High Court seeking bail who stands charged with abetting the suicide of his girlfriend Dr. Shahana.
    • Dr. Shahana, a postgraduate surgery student at Government Medical College, Thiruvananthapuram, recently took her own life because of her family’s inability to fulfill the excessive dowry requests made by Ruvais.
    • Ruvais’ family is accused of requesting 150 sovereigns of gold, 15 acres of land and a BMW car from Shahana’s family – all demands that they were unable to fulfill.
    • He has been charged with offences punishable under section 306 (abetment of suicide) of the Indian Penal Code (IPC) and Section 4 of the Dowry Prohibition Act.
  7. On Monay the Karnataka High Court condemned the “collective cowardice” shown by villagers who remained mute spectators when a 42-year-old woman from their village in Belagavi was publicly beaten and stripped because her son had eloped with a girl on the eve of her engagement to another.
    • A bench of Chief Justice PB Varale and Justice Krishna S Dixit opined that some sense of collective responsibility should be instilled in the villagers, and that the mute spectators should also be asked to pay an amount, like a tax, for the crimes of their fellow villagers.
    • the Chief Justice observed, Now, we are proposing, and my brother (Justice Dixit) reminded me of something in that nature in the British era – but if good things are there in British era, at times we only blame them for their wrong doings, why not take their good practices? So why not start something in the nature of something being in the collective responsibility of the village? State government is having some schemes. Why should it not be a lesson to all those who either the participants of the crime or unfortunately, silent spectators of the crime?
    • Chief Justice Varale added, Let there at least be some signal that in future it will not happen.
    • Justice Dixit observed, Same thing was done by William Bentinck in history, if you see RC Majumdar’s Indian History. During Bentick’s period, whenever arson or loot or robbery used to take place, he would identify the village from which the perpetrators came. Entire village was made to pay. Entire village would be punished because they allowed these things to happen.
    • the Court’s order, Among 50-60 people, only one person could gather the courage to rush to the rescue of the victim while others were merely mute or silent spectators to the incident. One may say that they were neither the assailants nor the offenders, but their inaction and maintaining their silence and remaining on the spot as mute spectators is nothing short of a passive abetment to the assault is our opinion. We have seen such unfortunate situations and it was at the level of permitting the culprits or the active assailants. But now time has come to give a very serious thought and a different angle to look into such situations.
    • Justice Dixit added, Police stations, subject to exceptions, they do not differentiate between the witness and the accused. It is very unpleasant for the people. The conduct of the police as such, perhaps judiciary also, does not generate confidence that people would be treated well … 72nd police report says this. The collective cowardice, it is a social aspect. That should be addressed. Police should not mean police of British Raj!
    • the Chief Justice remarked, We have to train our children that there is nothing wrong with helping somebody who is in difficulty. We have to stand up. It is not just Beti Bachao, Beti Padhao – it is also Beta Padhao. Unless you train (every boy) to see every woman as their sister, mother … Unless you train your boy child (nothing will improve). It is for the boy child to learn to respect every lady. As you would protect your own sister, should you not protect every lady?
    • Justice Dixit added, From our hearts, we are telling, we would not have been mute spectators. What kind of cowardice? Where are we going? In schools in England, they teach the poem -Charge of the Light Brigade to instill confidence, Lord Alfred Tennyson. Where are our poems?
  8. Recently the Rajasthan High Court ordered its registry and the Family Courts in the State to ensure that identities of the parties in matrimonial disputes are not disclosed. 
    • Justice Arun Monga flagged privacy concerns in such matters and ordered its registry to mask the names of the parties on the website as well as the mobile app.
    • the Court ordered, The Registry is directed to issue an appropriate circular to the Family Courts to strictly carry out compliance thereof.
    • the Court said, The sons are clearly oblivious to the realty that becoming a mother is undoubtedly the hardest thing to do, given the pain and labour it takes to produce a child. Emotionally, albeit it is greatest thing to happen to a woman, to create life from her own flesh and blood.
    • the Court said, The emotional complexity of the situation warrants need for professional intervention to understand and address the children’s feelings and concerns and to create a structured and monitored environment for them.
  9. Recently the Gujarat High Court observed while highlighting how several countries have criminalised marital rape, A rape is a rape even if it is committed by the victim’s husband.  (Anjanaben Modha vs State of Gujarat)
    • Single-judge Justice Divyesh Joshi in his December 8 order, pointed out that marital rape is illegal in fifty American States, three Australian States, New Zealand, Canada, Israel, France, Sweden, Denmark, Norway, Soviet Union, Poland and Czechoslovakia and several other nations.
    • the Court said, In the United Kingdom, which the Indian Penal Code (IPC) largely draws from, has also removed the exception (to section 376 which exempts husband from rape charge) pursuant to a judgment in 1991. Therefore, the IPC that was made by the rulers then, has itself abolished the exception given to husbands.
    • Justice Joshi underlined, In most of the cases of such a nature, the usual practice is that if the man is the husband, performing the very same acts that of another man, he is exempted. In my considered view, the same cannot be be countenanced. A man is a man; an act is an act; rape is rape, be it performed by a man the ‘husband’ on the woman the ‘wife’.
    • Justice Joshi underscored, The outlaw behaviours such as stalking, eve-teasing, shades of verbal and physical assault and harassment. Social attitudes typically characterise this latter category of crimes as ‘minor offences.’ Such crimes are regrettably not only trivialised or normalised rather they are even romanticised and therefore, invigorated in popular lore such as cinema. These attitudes, which indulgently view the crime through prisms such as ‘boys will be boys’ and condone them, nevertheless have a lasting and pernicious effect on the survivors.
    • the judge observed, Gender violence is most often unseen and is shrouded in a culture of silence. The causes and factors of violence against women include entrenched unequal power equations between men and women that foster violence and it’s acceptability, aggravated by cultural and social norms, economic dependence, poverty and alcohol consumption.
    • the Court stressed, General economic dependence on family and fear of social ostracisation act as significant disincentives for women to report any kind of sexual violence, abuse or abhorrent behaviour. Therefore, the actual incidence of violence against women in India is probably much higher than the data suggests and women may continue to face hostility and have to remain in environments where they are subjected to violence. This silence, needs to be broken.
    • the Court said while denying bail, The applicant, being a lady had not done anything to save the integrity of another lady when she told her about each and everything happened with her. She had to prevent her husband and son from doing such an act and by not doing so, she has played an equal role.
  10. On Wednesday the Delhi High Court refused to entertain a public interest litigation (PIL) petition seeking implementation of the Women’s Reservation Act 2023 before the 2024 general elections.  (Ms Yogamaya MG v Union of India and Ors)
    • A Division Bench of Acting Chief Justice Manmohan and Justice Mini Pushkarna remarked that the parliament has already said that the provisions of the Act will come into force after delimitation exercise and courts cannot do anything.
    • the Court said, We cannot go behind Section 334A (the provision mandating implementation of the Act after delimitation)..You will have to pray for its quashing. We cannot do anything. Parliament has specified when it will come into force… How can any court act contrary to that.
    • the petitioner sought directions to the Central government to “provide a firm and expedited date for the implementation of the Women’s Reservation Bill 2023, considering the prolonged period of uncertainty surrounding the delimitation process.”
    • She made the Election Commission of India (ECI), the Bharatiya Janata Party (BJP), the Indian National Congress (INC) and other major political parties as respondents and asked for a direction to the ECI to solicit response from all these parties about how they plan to implement the provisions of the bill.
    • The plea noted that implementation of the provisions of the Act was contingent on the completion of a delimitation exercise based on the first census taken after the commencement of the Constitution (128th Amendment) Act, 2023. Hence, the petitioner highlighted it was estimated that the Act may not be implemented before the year 2029.
  11. Today Special Public Prosecutor (SPP) Amit Prasad has resigned from his role as the special public prosecutor (SPP) who had been appearing for Delhi Police in the Delhi Riots 2020 cases.
  12. On 15th December the Supreme Court ordered an interim stay on criminal defamation proceedings initiated by IAS officer Rohini Sindhuri against IPS officer D Roopa Moudgil.
    • A bench of Justices Abhay S Oka and Pankaj Mithal also directed the senior Karnataka-based civil servants not to speak to the media.
    • the bench directed, The Criminal Case subject matter of this petition will not proceed further … Considering the fact that we are making an attempt to resolve all the disputes pending between the parties, none of them shall give any interview or any information to the media, social and print, in any form.
    • The Supreme Court was hearing Moudgil’s appeal against a Karnataka High Court order passed in August this year. In the said order, the High Court had refused to quash a criminal defamation case initiated by Sindhuri against Moudgil.
    • On February 18 this year, Sindhuri discovered that Moudgil had made several allegations against her in Facebook posts. In these posts, Moudgil accused Sindhuri of sharing her private pictures with fellow IAS officers.
    • On February 21, Sindhuri issued a legal notice to Moudgil and demanded an unconditional apology and ₹1 crore in damages for the loss of her reputation and mental agony.
  13. On Monay the Calcutta High Court judge Justice Abhijit Gangopadhyay directed a lawyer to be taken into custody from the courtroom on charges of contempt of court, Calcutta High Court Bar Association has unanimously resolved and requested the Chief Justice of the High Court to withdraw all judicial work from Justice Gangopadhyay.
    • the Bar Association said Justice Abhijit Gangopadhyay on 18.12.2023 in course of hearing of a matter, whereby His Lordship by holding Sri Prosenjit Mukherjee, the Ld. Advocate, guilty of Criminal Contempt and disrobed him in the open Court and sent him to Civil Prison in the custody of the Ld. Sheriff from the Court Room through the corridor of the High Court. The reason apparently is according to His Lordship the demurer of Sri Mukherjee while showing an order of the Hon’ble Division Bench, which modified His Lordship’s order was improper and contemptuous. Even without any order Mr. Mukherjee, the Ld. Advocate was taken into custody from the Court Room without giving any opportunity of hearing.
  14. On Monay Trinamool Congress (TMC) party leader Mahua Moitra moved the Delhi High Court challenging the Government of India order to evict her from government allotted bungalow in the wake of her recent expulsion from the Lok Sabha.
    • Moitra highlighted that the legality of her expulsion as a Member of Parliament (MP) is presently pending adjudication before the Supreme Court of India.
    • Moitra submitted, In the event that the Petitioner is so allowed, she will readily undertake to pay any charges that may be applicable for the extended period of stay.
    • her petition stated, Instability in accommodation, however, would pose a significant impediment to the Petitioner’s ability to host and engage with party members, parliamentarians, fellow politicians, visiting constituents, key stakeholders and other dignitaries, which is essential, especially in the lead up to a general election. In addition, the Petitioner is a woman living alone in New Delhi. She has no place of residence or alternative accommodation in Delhi. Therefore, if evicted from her government accommodation, she will have to fulfil the duties of campaigning while also finding, and then shifting to, a new residence all by herself. This will place an onerous burden on the Petitioner.
  15. On Saturay Supreme Court judge Justice BR Gavai said Courts in India should not unduly interfere in arbitration proceedings and must ideally play the role of an intermediary if such proceedings reach the Court, Justice Gavai was giving the keynote speech at a conference organised by the Indian Council of Arbitration on the topic ‘Arbitration as a catalyst for economic growth‘.
    • Justice Gavai remarked, As a member of the judiciary, I say this with a strong sense of duty and responsibility: the courts must continue to take initiative and preventing undue interference is highly recommended. The courts should play the role of an intermediary by providing interim relief prior to or, in certain cases, during the establishment of the arbitral tribunal.
    • he said, Economic development, cross-border flow of capital, and the settlement of related commercial disputes have historically enjoyed a symbiotic relationship; and does commercial arbitration have an important role to play in the facilitation of international trade and investment in India? The answer is yes.
    • Justice Gavai opined, They must also address the opportunities and challenges that India, and other emerging economies, face in order to cement their place in the global arbitration community. Considerations such as developing a diverse and specialized bar and bench for international arbitration and adapting to evolving technological needs are prominent among these.
    • He proceeded to suggest some pointers for effective arbitrations in India, some food for thought for the legislature and judiciary. These included the following.
      • The need to minimise the scope of intervention by judges, from the pre-reference phase to the stage of contesting an award.
      • A strict adherence to deadlines for finishing arbitral processes is required.
      • Ensuring the execution of arbitral awards is imperative.
      • Party autonomy must be respected.
      • The number of grounds necessary to challenge the arbitral award should be limited and specified.
      • Stays on arbitral awards should be an exception, not a norm.
      • Recognition for emergency awards should be thought over.
      • The need to promote institutional arbitration and arbitration institutes.
      • Panelists and experts can help increase the credibility of the process.
      • Training sessions and conferences should be held to teach arbitration skills to all young professionals.
    • the Chief Justice said, It has become imperative to facilitate, regulate and accommodate in flow of such foreign investments within the sanctity of our pre-existing legal framework in a manner that benefits the party involved therein. The need of the hour is that our statutory mechanism is ready to tackles varied disputes that arise in the wake of such transactional reach.
    • the judge said, It is important to provide a statutory mechanism which is inclusive in nature and provides a forum that is solely established for the purpose of governing and dealing with matters pertaining to disputes arising between private investors of domestic and foreign origin. Economic growth, capital investment and social progress suffer when disputes or conflicts occur. Arbitration acts as a catalyst that would expedite the process of efficient dispute resolution without having to go through the lengthy and tiresome route of general litigation – thereby bypassing the original remedial course. Arbitration can be tailored to provide the desired flexibility.

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