Today’s Legal Updates

Friday, 18th November 2022

Legal Awareness:- CONSTITUTION OF INDIA

Part – Vl THE STATES

CHAPTER- III  THE STATE LEGISLATURE

General

Article – 175 Right of Governor to address and send messages to the House or Houses.

  1. The Governor may address the Legislative Assembly or, in the case of a State having a Legislative Council, either House of the Legislature of the State, or both Houses assembled together, and may for that purpose require the attendance of members.
  2. The Governor may send messages to the House or Houses of the Legislature of the State, whether with respect to a Bill then pending in the Legislature or otherwise, and a House to which any message is so sent shall with all convenient despatch consider any matter required by the message to be taken into consideration.

Today’s Legal Updates: –

  1. On Friday the Union Minister for Electronics & Information Technology Ashwini Vaishnaw said that the idea was in furtherance of the Prime Minister’s philosophy of women empowerment.
    • he said while speaking to the press, We have attempted in the philosophy of women’s empowerment that Prime Minister Narendra Modi Ji’s government works, we have attempted to use the words she and her in the entire bill, instead of he and him and his. So, this is an innovative thing which has been attempted in the bill,” 
    • 81 amendments were proposed and 12 recommendations were made towards comprehensive legal framework on digital ecosystem.
  2. On Friday the Delhi High Court said that it will first hear the pleas that directly challenge the Agnipath Scheme and then come to allied petitions against cancellation of recruitment processes in the Armed Forces in light of the Scheme.
    • CJ said, We will first hear the Agniveer matter. Agniveer is the main matter. I have expressed my opinion that this is the core issue. It will have some bearing on all other cases.
    • The Agnipath Scheme proposes to induct youth into the Indian Army for four years. After this period, out of the selected candidates, only 25 per cent will be continued in the Indian Army while the rest will be denied jobs in the Armed Forces.
    • The Central government had filed a consolidated reply to these petitions, stating that Agnipath will make the forces young and recruits who exit after their tenure will prove to be a nationalist, disciplined and skilled manpower.
    • The Modi government has said that an analysis of the existing structure of ‘below officer’ rank divisions in the Indian Armed Forces shows that the average age of a personnel was 32 years, while globally, it is only around 26 years. The Armed Forces’ retention policy, under which a jawan, sailor or airman serves between 15 to 20 years, is the main reason for it.
  3. On Thursday the Aurangabad Bench of the Bombay High Court stayed an October 4 notification issued by the Central government transferring all matters involving debt amount of ₹100 crores and above to the Debt Recovery Tribunals (DRT) benches at Mumbai, Chennai and Delhi.  (Ishwarlal Lalwani v. UOI)
    • A bench of Justices Ravindra Ghuge and Sanjay Deshmukh observed that without any amendment to the Recovery of Debts and Bankruptcy Act (RDB Act), taking away jurisdiction of various DRTs appeared to be prima facie unsustainable.
    • the Bench held, If the matters are transferred from various Debts Recovery Tribunals to a particular Debts Recovery Tribunal as per the impugned Notification, and subsequently, if the Notification is held to be unsustainable, all the transferred matters, which could be in several thousands, will have to be transferred back to the Debts Recovery Tribunals, which originally had the jurisdiction. It is in these circumstances, that we are staying the Notification dated 04/10/2022.
    • the lawyer argued, If the notification dated 04/10/2022 is made applicable to the RDB Act, it would also be made applicable to the Securitisation and Reconstruction of Financial Assets and Enforcement of Securities Interest (SARFAESI) Act and the very purpose of establishing the Debts Recovery Tribunals at various locations in each State, would be defeated.
  4. On Friday a Jammu & Kashmir court sentenced a man to six months imprisonment for carrying out illegal modification including including high car siren to his Mahindra Thar vehicle in contravention of Section 52 of Motor Vehicles Act of 1988 (MV Act). (UT of Jammu & Kashmir V/s Adil Farooq Bhat)
    • the judgment said, Since the offence does not involve any moral turpitude and the violator has not been previously convicted and having regard to his age and antecedents the purpose of the justice shall be served if the case is considered under probation of offenders Act, and accused is given benefit of probation. Therefore, the accused is directed to execute a bond to the tune of Rs 2 lakh for keeping peace and good behavior for the period of two years.
    • the judgment said, The RTO Kashmir at Srinagar is directed to remove the car siren and all the modifications those were done in contravention to the provisions of Motor Vehicle Act and the rules made thereunder and restore the vehicle (Thar) to its original position as specified in the Registration Certificate (RC) of the vehicle.
    • the Court underlined, As per section 52 of MV Act, no motor vehicle shall be modified or altered from its original position in contravention to the provisions of Motor Vehicle Act and without the permission from the concerned authority.
    • the Court said, There are mainly two reasons why people violate these rules; one, lack of awareness and second, no strict action against the violators, therefore it is imperative to educate the people on the subject and simultaneously strict action as warranted under law must be taken against the violators.
  5. On Friday the Supreme Court granted bail to Anu Shanthi, one of the two convicts in the 2014 twin murder case in Kerala’s Attingal. (Anu Shanthi vs State of Kerala)
    • A bench of Justices Sanjay Kishan Kaul and AS Oka passed the order granting bail to Shanthi who was found guilty by a Sessions Court in Kerala of having conspired with one Nino Mathew, with whom she was having an affair, to kill her husband, mother-in-law and 2-year-old daughter.
    • the plea said, It is an admitted fact that name of the Petitioner is not there in the FIS or in the FIR, as she has been falsely implicated in the alleged offences especially in 120(B) (criminal conspiracy) and 302 (murder) of the (Indian Penal Code) IPC.
    • the plea stated, It is an admitted fact that the petitioner was silenced by the police and did not give a chance to explain her version when she was under the police custody without any evidence which is clear violation of the provisions of Cr.P.C … The trial Court finding that Petitioner send SMS that FINISH OFF is absolutely wrong and there is no such SMS and evidence also on the entire records (sic).
  6. On Friday the Madras High Court Advocates Association (MHCAA) has written to the Chief Justice of India (CJI), DY Chandrachud opposing the proposed transfer of Acting Chief Justice T Raja to the Rajasthan High Court.
    • the letter said, The Madras High Court Advocates Association (MHAA) hereby lodges its strongest opposition to the proposed transfer, and calls upon the Hon’ble Supreme Court, the Hon’ble Collegium and the Government of India to drop the proposal and let Hon’ble Acting Chief Justice of Madras High Court to continue in his present capacity till he attains superannuation.
  7. On Thursday the Madras High Court quashed the proceedings under the Prevention of Money Laundering Act (PMLA) against Member of Parliament and leader of the Dravida Munnetra Kazhagam (DMK) party, S Jagathrakshakan.  (Jagathrakshakan v. The Deputy Director Directorate of Enforcement)
    • A bench of Justices PN Prakash and RMT Teekaa Raman allowed a writ petition that Jagathrakshakan had filed to quash the Enforcement Case Information Report (ECIR) registered against him in June 2020 by the Directorate of Enforcement (ED) .
    • the division bench noted that on September 23 this year, a single-judge of the Madras High Court had quashed the two FIRs registered by the CBCID. It, therefore, said that the ED cannot proceed with its ECIR.
    • The bench held that when a court of law had already quashed a case related to the predicate offence, the ED could not be allowed to proceed further with the investigation which it had initiated solely on the basis of the predicate offence.
  8. On Friday the Supreme Court issued notice to Assam government on a plea filed by 89 members of Foreigners Tribunals in Assam, challenging their discharge from service by the State of Assam. (Pranab Bora vs Union of India)
    • These members were appointed on contractual basis pursuant to a Supreme Court direction passed on May 30, 2019, which called for establishment of additional Foreigners Tribunals.
    • They were discharged by way of notification dated October 14 which has been challenged before the top court.
    • the Court directed, We will issue notice. Serve it to the standing counsel of Assam.
    • stated the plea, It is pertinent to mention that contrary to the stand of the respondents, petitioners were on the duty of deciding the Foreigners reference cases at the time of their forfeiture and as on date admittedly more than 1 lakhs foreigners reference cases are pending in Assam.
    • the plea said, While previous Tribunal Members were allowed to continue in their service as on date, the petitioners service was forfeited which apparently is discriminatory. The Government has put the petitioners in a different class merely because the appointment was made in view of the direction of this Hon’ble Court and without there being any valid reason and without even informing and taking leave of this Court.
  9. On Friday a Mumbai Court dismissed Mumbai cop Sachin Waze was granted bail by in the money laundering case in which he was booked for collecting bribes from various bars and restaurants on the alleged instructions of former Cabinet Minister Anil Deshmukh.
    • The order was pronounced by special judge RN Rokade today in an application filed by Waze under Section 88 of the Code of Criminal Procedure (power of court to take bond for appearance).
    • The Enforcement Directorate had initiated probe against Deshmukh and his associates after the Central Bureau of Investigation (CBI) filed an FIR following a Court-directed enquiry into allegations of corruption and misuse of his official position.
  10. On Friday the Supreme Court stayed a recent Rajasthan High Court order which granted 15 days’ parole to a convict serving life imprisonment for offences under the Protection of Children from Sexual Offences Act (POCSO Act) to conceive a child with his wife. (State of Rajasthan v. Rahul)
    • the High Court had observed, In the case in hand, considering the peculiar fact that petition is filed by the young wife of the convict, who is issueless and is desirous of retaining/maintaining her marriage with the convict who is incarcerated for a long period of time; considering that petition is filed for having progeny for purpose of preservation of lineage…this Court is inclined to allow the present writ petition and release the convict-petitioner on emergent parole for fifteen days.
  11. On Friday the Madras High Court restrained President of the Tamil Nadu BJP IT Wing CTR Nirmal Kumar from making any defamatory remarks, statements or social media posts against DMK leader and State Electricity Minister Senthil Balaji.  (V Senthil Balaji v. Nirmal Kumar and others)
    • In an interim order passed on 17th November, Justice CV Karthikeyan said that Nirmal Kumar must not make any defamatory public statements or remarks against Balaji.
    • In his plea, Balaji said that Kumar was a habitual offender, who repeatedly made defamatory remarks against him through his tweets or press interviews. It was further claimed that Kumar repeatedly made slanderous allegations against him without any evidence.
    • Senior Advocate Wilson said, Such misinformation disseminated to thousands of people would tarnish Balaji’s image.
    • The High Court recently refused to discharge Balaji from the cash-for-job scam case registered against him by the Enforcement Directorate (ED) following allegations of job racketing.
  12. On Friday the Delhi High Court held that simplicity in an invention should not deter courts from granting a patent.  (Avery Dennison Corporation v. Controller of Patents & Designs)
    • While allowing the grant of patent to a company, Justice Prathiba M Singh stated,
      • Some of the fundamental principles while analysing inventive step and whether an invention is obvious or not are:
      • i. That simplicity does not defeat an invention – even simple inventions are patentable.
      • ii. The inventive step has to be assessed on the basis of the date of priority of the subject patent and not after the publication of the same i.e., it is not permissible to do a hindsight analysis or an ex-post facto analysis.”
    • the Court observed, One of the sure tests in analysing the existence of inventive step would also be the time gap between the prior art document and the invention under consideration.
    • If the invention was so obvious, fasteners and fastener stock being products used in bulk in industries, any third party could have made the changes in the prior art to arrive at the subject invention – which obviously has not happened.
    • the Court added, The differences which the Controller describes as `’superficial’ may appear simple but clearly have an impact on the product concerned. The description of the said differences as superficial would, therefore, be misplaced.
  13. On Friday the Supreme Court rejected a plea by the National Investigation Agency (NIA) against an earlier order of the Court directing Bhima Koregaon accused Gautam Navlakha to be placed under house arrest instead of keeping him in jail. (Gautam Navlakha v NIA)
    • The bench comprising Justices KM Joseph and Hrishikesh Roy directed that the order be complied within 24 hours.
    • Justice Joseph asked Solicitor General (SG) Tushar Mehta who appeared for the NIA, Communist Party is a recognised party of India. What is the issue.
    • the SG said, If it does not shock you then what can I say.
    • the bench responded, No it does not shock us.
    • the order said, We record submission of SLP petitioner (Navlakha) that he has no objection to NIA sealing the kitchen door leading to exit door. NIA is free to seal kitchen door leading to exit point. NIA shall not close the door between hall and kitchen. Another concern is about openable grills. We direct such grills can be locked and keep the key with themselves. Apart from the CCTV installed, there is another one on the southern door. Order of Nov 10 shall be given effect within 24 hours from the date of the receipt of the copy of the order.
    • the bench had ordered, We would thus think that he should be allowed to be placed for house arrest for a period of one month. There will be armed escorts to monitor that there is no misuse of the house arrest.
    • the application said, it is inconceivable how the house arrest of a person who is accused of Maoist activities be carried out in a building which is a public library registered in the name of political party i.e. the Communist Party.
    • Justice Joseph asked, Is it because the library belongs to a political party that is why you have this problem.
    • the ASG replied, There are series of misleading statements and house arrest can be used for different purpose? He cannot be trusted…He has selected a place where he can meet different people. Now court said CCTV can be in exit when they objected to CCTV in room. Now there was a second exit also where there was no CCTV and after we detected they said, ‘Ok it can be installed.
    • Justice Roy said, He could not have gone there unless a recce was carried out by the police officers. Now it has been done so measures can be taken.
    • the ASG said, See photos of grills which can be opened. It is like collapsible grills which can be opened but people can come in. Large no of persons are coming there and karate classes are also going on there. This is not even residential and it is just makeshift. This is worse than jail. By this house arrest thing, an attempt has been made to take everyone for a ride.
    • Justice Joseph queried, Ultimately, what you want.
    • ASG Raju contended, Due to a series of misstatements, he is not eligible for house arrest. Here is a person who is not straight forward in his representation before the court.. an attempt has been made to make his monitoring inside the house a sham.
    • Senior Counsel Nitya Ramakrishnan said, It is a residential unit. There is a bathroom and bedroom. It was a floor above the library. It has been used as residential unit in the past. No member of public goes to read there. It is a long empty hall with kitchen and bathroom…on Nov 14 one CCTV camera was installed, second CCTV could not be installed since we moved trial court. NIA misbehaved with locals as well and made them to take out books etc. NIA said kitchen cannot be used.. now kitchen access is barred.
    • Ramakrishnan submitted, Anyone with basic knowledge of contemporary politics will know that it is a recognised party.
    • the ASG said, Every time we point out a loophole they say we will close it and what if it turns out to be a gaping hole.
    • Justice Joseph remarked, In case you are finding some or other loophole to see our order is not complied with then we have to take a serious view of it.
    • Justice Roy also weighed in, Do not bring in conditions to say that with your entire police force you cannot keep a watch on an ailing 70 year old.
    • ASG said, Please have this on Monday I have to go for my 90-year-old mother in law.
    • Justice Joseph said, You think we cannot see through attempts to delay the case. For what purpose will we post on Monday.
    • Justice Roy said, SG and ASG saying that we cannot keep a 70-year-old ailing man in house confinement with all might of the State.
  14. On Friday the Bombay High Court said that evidence against Anand Teltumbde, one of the accused in the Bhima Koregaon case of 2018, prima facie suggest that he did not not indulge in ‘terrorist acts’ as alleged by the National Investigation Agency (NIA).
    • the Court held, We are of the prima facie opinion that on the basis of material placed before us by NIA which has been looked into by us, it cannot be concluded that Appellant has indulged into a terrorist act. The material placed on record prima facie does not inspire confidence to bring the Appellant’s act as alleged for the punishment prescribed under Sections 16, 18 and 20 (terrorist acts) of the UAPA as they read.
    • the Court opined, Looking at the contents of the documents, the submission of NIA would fall in realm of presumption according to us which may need further corroboration.
    • the Court added, On prima facie appreciating the material on record as well as the statements of three key witness against Appellant, we do not think that provisions of Sections 16 and 18 (indulging in terrorist act) can be invoked at this stage against Appellant for want of better proof and evidence. On reading the chargesheet and the material placed before us, prima facie it cannot be inferred that Appellant has involved himself in a ‘terrorist act.
  15. On Friday the Madhya Pradesh High Court stated that the mandatory requirement under the Madhya Pradesh Freedom of Religion Act that a citizen involved in religious conversion must give a declaration about same to the District Magistrate, is prima facie unconstitutional.  (Rev. Suresh Carleton & Ors v State of MP & Ors)
    • the order stated, Section 10 makes it obligatory for a citizen desiring conversion to give a declaration in this regard to the District Magistrate which in our opinion ex facie, unconstitutional in the teeth of aforesaid judgments of this Court. Thus, till further orders, respondent shall not prosecute the adult citizens if they solemnize marriage on their own volition and shall not take coercive action for violation of Section 10 of Act of 21.
    • it was specifically prayed to strike down the following provisions of the Act
      • Prohibition of conversion from one religion to another;
      • Complaint against the conversion of religion;
      • Punishment for contravention of Section 3;
      • Deeming any marriage performed in contravention of Section 3 as null and void;
      • Mandatory declaration before conversion of religion; and
      • Placing burden of proof on convertee.
  16. On Thursday the Jharkhand High Court launched a new version of the e-filing software to enable filing pleadings, plaints, written statements, replies and various applications before the High Court and District Courts online.
    • The newly launched version will have provisions for online payments to enable online payment of court fee, judicial deposit, fine, penalty and other payments.
    • It also provides services such as filing of new cases and pleadings with the use of readymade templates as well as e-signatures on pleadings, oath recordings, bulk filing of applications, online vakalat, portfolio management etc.
  17. On Friday the Delhi High Court a special bench of Justices Siddharth Mridul and Justice Rajnish Bhatnagar expressed reservations about hearing bail appeals in the Delhi riots cases due to time constraints.
    • Justice Mridul said, There is going to be a difficulty. The difficulty is that this is a a special bench. We can’t possibly be hearing bail appeals Friday to Friday. We heard Umar Khalid (case) because we had already begun to hear that. Because at that time it was the roster bench. So we have to consider whether it would be possible to assemble every alternate Friday.
    • the bench remarked, Arguments are yet to begin. In that sense alone, none of these appeals are part-heard before us. We will have to take a call because this is likely to take a long time. We would not like to curtain any of the appellants in any manner and surely we can’t expect you.. we don’t know when we would be able to conclude all of this.
  18. On Thursday the Kerala High Court held that a default bail application filed through online mode via e-filing can be considered by court for grant of bail and the Court need not insist on physically filing such application.  (Akhil AP & Anr. v State of Kerala & Anr.)
    • the Court said in its judgment, Now we are in the E-world. In many Courts e-filing is made mandatory and steps to complete mandatory e-filing in all Courts in India are on its final call. Such being the scenario, how can a court ignore an application filed through e-filing mode to hold that there was no petition filed within time for want of production of physical copy of the same within time.
    • the Court held, No doubt, in such a case involving the question as to whether the accused filed an application for statutory bail within time, by filing the same in e-filing mode, it has to be held that the accused expressed his preparedness to be released on statutory bail within time and to furnish bail, by filing application for bail through the e-filing mode.
    • On going through Section 167(2)(a) of the CrPC, the Court opined that the relevant point of consideration is whether the accused (petitioners) were prepared to furnish bail, on expiry of 90 days, that too, before filing of the final report.
  19. On Friday the Kerala High Court issued a notice to the Central and State governments on a plea seeking compensation for a man claimed to have been paralysed due to the administration of the Covishield vaccine.  (Ansariya AK v The Union of India & Ors)
    • Since the plea sought compensation to the tune of ₹10 crores from the manufacturer of the Covishield vaccine, Justice VG Arun also issued notice to the Serum Institute of India.
    • The petitioner submitted that her husband suffered high fever on the same day that he received the vaccine and thereafter, his condition continuously worsened. She said that he was admitted to various hospitals, and underwent various medical laboratory tests and therapies. Even though many doctors attempted to diagnose his illness, nobody could find out what was the exact reason for the medical problem. Now her husband is completely paralyzed.
    • The plea said that the petitioner had approached the district medical officer with a representation containing all her grievances including the medical treatment of her husband, and the financial issues faced by them due to her husband’s condition.
  20. On Friday the Delhi High Court asked the Tihar Jail authorities why video conference (VC) facility should not be employed to enable jail inmates to meet their families and relatives living abroad.  (Natasha Narwal & Anr v State of NCT of Delhi & Anr)
    • the judge asked, I could understand that it may not be given to those inmates that are high risk so that it is not used for some criminal enterprise. But why not for other inmates.
    • Tihar’s response stated, Every foreign prisoner is allowed to have legal interview for the preparation of an appeal or for procuring bail or for any other legal purpose. The prisoner is allowed to have legal interviews twice in a week like other prisoners.
    • Though both Kalita and Narwal are now out on bail, the plea also highlighted the fact that there are other foreign inmates in Tihar who are unable to talk to their families back home because of this very restriction.
  21. On Friday the Chief Justice of India (CJI) Dhananjay Chandrachud has agreed to meet striking lawyers of the Gujarat High Court, who are protesting the proposed transfer of Justice Nikhil S Kariel to Patna High Court.
    • Pandya confirmed, CJI has finally given us an appointment to meet. He will meet us tomorrow (Saturday) morning,
    • the resolution stated, It is reiterated that the transfer of such honest and upright Judge for which the entire Bar is vouching in one voice is not in right taste and is being strongly opposed as it strikes at the Rule of Law and Independence of Judiciary which are two prime edifice on which our Constitution rests. It is also resolved that the delegation may convey the feeling of the Bar to all concerned including CJI and other Judges of the collegium.
  22. On Friday the Solicitor General of India (SG) Tushar Mehta told the Supreme Court about the growing trend of judges being maligned on any adverse order being passed.
    • One order against one section in a political matter, NGOs gather and speeches are made in such seminars saying ‘I don’t trust this institution’.
    • One order not to the liking of one section and articles are written maligning the concerned judges, I can’t do either. I have only this forum to speak,
    • Mehta had said, These highly placed officers in connivance with authorities in constitutional posts took advantage. I have not mentioned names. But I have WhatsApp chats. We have not revealed names so that faith of people is not shaken upon system.
    • Sibal contended, We took instructions. The Chief Minister never met any High Court judge.
    • Mehta responded, I only read a Whatsapp chat where a close.

Legal Prudent Fraternity