Wednesday, 20th 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 – 354 Application of provisions relating to distribution of revenues while a Proclamation of Emergency is in operation.

  1. The President may, while a Proclamation of Emergency is in operation, by order direct that all or any of the provisions of articles 268 to 279 shall for such period, not extending in any case beyond the expiration of the financial year in which such Proclamation ceases to operate, as may be specified in the order, have effect subject to such exceptions or modifications as he thinks fit.
  2. Every order made under clause (1) shall, as soon as may be after it is made, be laid before each House of Parliament.

Today’s Legal Updates: 

  1. Recently the High Court of Jammu and Kashmir and Ladakh directed the Union Ministry of Defence to pay up pending rental dues of ₹ 2.49 crores to twenty-four families comprising Displaced Persons (DPs) from Pakistan-Occupied Kashmir (PoK) whose land was illegally and forcibly taken over by the Indian Army in 1978.  (Saroop Singh and Ors. V/S Union of India and Ors.)
    • Justice Wasim Sadiq Nargal observed that the land allotted to displaced persons in 1953 had been forcibly occupied by the Indian Army without following due process of law and without paying any rental compensation since 1978.
    • the Court underscored, Once a land is allotted to the DPs for their rehabilitation under, the same cannot be taken away from them by any means or by any of the agency without payment of rentals or by payment of compensation after adopting due course of law.
    • the Court said, Union of India is under legal obligation to pay the rental compensation assessed by the State Government to the petitioners and to initiate the process to formally acquire the land, if they so desire in accordance with law.
    • the Court said, This court finds that the subject land belonging to the petitioners in under unauthorized occupation of the respondent-Union of India since 1978 and continues to be so, even as on date … the respondents (Defence Ministry and other government authorities) have violated the basic rights of the petitioners and have deprived them of their valuable constitutional right without following the procedure as envisaged under law.
    • the High Court allowed the petition filed by the displaced persons and directed the respondent authorities to pay the rental compensation of ₹ 2.49 crores (for the period up to 2009) to the lawful claimants after necessary verification within a month.
    • The Court added that additional rent for the period from 2009 onwards should also be estimated under the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013 within one month and paid to the claimants.
  2. Recently the Madras High Court rejected the anticipatory bail plea filed by film producer C Alagappan and his family members, all of whom are accused in the property fraud case filed by actor and former Bharatiya Janata Party (BJP) member Gautami Tadimalla.
    • Justice CV Karthikeyan refused to grant anticipatory bail to Alagappan, his wife AL Nachal, his sons-in-law Siva and Baskar, his daughter Arthi and his driver Satish Kumar, after noting that there existed enough evidence to prima facie suspect they had cheated Gautami.
    • the Court said, Intention to cheat had been nurtured from embryo and put to devastating effect on a damsel, already in distress, afflicted with a debilitating disease, who just wanted to provide security for her young daughter. The facts reveal not only cheating but also misappropriation and siphoning of funds for the personal gain of the accused persons in both the cases registered by the two separate Investigating Agencies.
    • As per Gautami’s complaint, in 2004 she had decided to sell 46 acres of land that she owned. Alagappan approached her claiming to be a builder and property agent. She gave him the power of attorney for the sale of such land. Over the years, Alagappan and his wife dealt with sale and acquisition of other assets belonging to Gautami.
  3. On Thursday Advocate Yeshwanth Shenoy has been elected the President of the Kerala High Court Advocates’ Association (KHCAA).
    • Shenoy secured 1,147 votes inching out the closest candidate advocate KB Pradeep by 84 votes.
    • President – Yeshwanth Shenoy
    • Vice President – Unni KK
    • Vice President (Lady) – Gisa Susan Thomas
    • Secretary – Anoop V Nair
    • Treasurer – Varun C Vijay
    • Executive Committee
      1. Jayakrishnan M (Vazhoor)
      2. Jayakrishnan U
      3. Varghese Sabu
      4. Maya M.
      5. Mahesh Bhanu S
  4. On Wednesday the Kerala High Court refused to stay the release of the Mohanlal starrer movie Neru which is scheduled to hit the big screen on Thursday, December 21.
    • Justice Devan Ramachandran, however, issued notice to the respondents including the Central government, director-cum-writer Jeethu Joseph and co-writer advocate Santhi Mayadevi.
    • The petition was moved by one Deepu K Unni who alleged that the script for the movie was plagiarised from a screenplay that he had written.
    • Unni claimed that he had put together a script about an “emotional family drama”, featuring a court story with a female and male lawyer as the protagonists, which was later sent to the makers of Neru.
  5. Recently the Patna High Court quashed the criminal proceedings initiated against Congress leader and former India cricketer Navjot Singh Sidhu for allegedly appealing for votes on religious grounds during the 2019 Lok Sabha elections. (Navjot Singh Sidhu v The State of Bihar & Anr)
    • Justice Sandeep Kumar concluded that Sidhu had only said that All India Majlis-e-Ittehadul Muslimeen (AIMIM) Chief Asaduddin Owaisi was trying to divide Muslim votes.
    • the Court opined, From the content of the speech, it does not appear that the petitioner has tried to promote feelings of enmity or hatred between two classes of people or two religions but in fact he has only said that Mr. Owaisi was trying to divide the votes of Muslim.
    • the Court said, In the opinion of this Court, the ingredients of Section 125 of the Representation of the People Act are not made out against the petitioner as the statements have not been made to promote or attempting to promote on grounds of religions, race, caste, community or language, feelings of enmity or hatred between different classes of citizens of India.
    • the Court said, The provisions of Section 195 of the CrPC are mandatory and the non-compliance of these provisions would vitiate the prosecution and all other consequential orders/ proceedings. Since the complaint has been filed against the mandatory provision of Section 195(1) CrPC, all subsequent action shall be held to be illegal i.e., the investigation and the cognizance pursuant to the registration of the FIR.
    • The summons have been issued mechanically by a cryptic and non speaking order and therefore, the order taking cognizance and issuance of summons dated 12.10.2020 cannot be sustained.
  6. On Wednesday the Delhi High Court reserved its verdict in the plea by Trinamool Congress (TMC) leader Mahua Moitra for interim relief against Bharatiya Janata Party (BJP) MP Nishikant Dubey and Advocate Jai Anant Dehadrai who had alleged that she accepted bribes from businessman Darshan Hiranandani to ask questions in parliament.
    • Justice Sachin Datta also asked Dubey and Dehadrai whether there was any quid pro quo between Moitra and businessman Hiranandani.
    • Senior Advocate Sanjoy Ghose said The point, as of today, is that they (Moitra) have not been able to show that whatever I have said is substantially not true… A public person must have a thicker skin. If public good is there in exposing something then injunction should not be granted. Standard in that case is much higher.
  7. On Wednesday the Madras High Court dismissed the bail plea filed by Ankit Tiwari, an officer of the Enforcement Directorate (ED) who was arrested by the Tamil Nadu Directorate of Vigilance and Anti-Corruption (DVAC) recently following allegations of bribery.
    • Justice V Sivagnanam of the Madurai bench of the High Court dismissed his bail plea today.
    • the DVAC said, the DVAC then claimed that Tiwari had demanded ₹3 crore from a local doctor in exchange for closing pending cases against him. He had later agreed to an amount of ₹51 lakh and the doctor had paid him ₹20 lakh.
    • Tiwari added that as per Section 7(a) of the Prevention of Corruption Act 1988, an officer can be prosecuted only if he or she receives gratification other than legal remuneration as a “motive or reward for doing or forbearing to do any official act or forbearing from doing something in the exercise of official position to favour someone.”
  8. On Tuesday the Delhi High Court rejected Habeas Corpus petitions by three persons accused in a money laundering case filed against Chinese smartphone manufacturer, Vivo.  (Nitin Garg & Ors v UOI)
    • Justices Suresh Kumar Kait and Shalinder Kaur concluded that there was no break in their custody from December 7 and that they remained in lawful judicial custody.
    • the Court’s judgment said, The learned ASJ-04 has rightly issued production warrants against the petitioners on 07.12.2023 for production of the petitioners and the petitioners remain in lawful custody of learned ASJ-04.
    • the High Court said, It is also not the case of the petitioners that prosecution complaint was filed by ED beyond the stipulated period thereby entitling the petitioners for ‘default bail.’ Also no bail application was moved on behalf of any of the petitioners at that time. In such a situation, the petitioners have to remain in ‘custody of court.
    • the Court explained, In such a situation (where no production warrant is issued), the custody of the accused will not be in continuum and for the break period, it may be illegal.
  9. On Wednesday the Bombay High Court sought the assistance of Attorney General R Venkatramani in a public interest litigation (PIL) petition challenging the protection from disqualification granted under anti-defection law to MPs/ MLAs in case of merger of their political party with another political party.  (Meenakshi Menon v. Union of India & Ors.)
    • A division bench of Chief Justice Devendra Kumar Upadhyaya and Justice Arif Doctor granted six weeks to the Central government to file their reply to the petition which sought a declaration that paragraph 4 of the tenth schedule of the Constitution be struck down since it provides that disqualification on grounds of defection does not apply in case of a merger between two parties.
    • Abdi argued People of India have come to you because vote is taken on ideology and later sides are changed. We vote and tomorrow they change not for public interest but for money and due to fear of agencies. There is no mood to change. Its happening day and night. They are going for money, fear of agency and voters are not considered who are sovereign of the country.
  10. On Tuesday the Lok Sabha passed the Bharatiya Nyaya (Second) Sanhitathe Bharatiya Nagarik Suraksha (Second) Sanhita and the Bharatiya Sakshya (Second) Bill in the absence of 97 opposition MPs who are under suspension.
    • The Bharatiya Nyaya (Second) Sanhita now comprises 358 sections. The first version of this bill had 356 sections with 175 sourced from the Indian Penal Code (IPC) with alterations, and by which 22 Sections were proposed to be repealed, and 8 new Sections introduced.
    • The Bharatiya Nagrik Suraksha (Second) Sanhita now has 531 Sections. The first bill consisted of 533 Sections, out of which 150 were sourced from the Code of Criminal Procedure (CrPC) after revisions, 22 Sections of the earlier CrPC were proposed to be repealed, and 9 Sections were to be newly added.
    • The Bharatiya Sakshya Bill remains unchanged and has 170 Sections. Of these, 23 Sections have been sourced from the Indian Evidence Act with amendments, 1 Section is entirely new, and 5 Sections are proposed to be removed.
    • Shah maintained, It is to avoid becoming a police state that these laws are being passed.
  11. Recently the Rajasthan High Court ruled that a victim of a crime is not a necessary party to bail applications and such petitions can be decided without hearing the victim or complainant except in certain types of rape cases where the statute specifically makes presence of the informant mandatory.  (Pooja Gurjar & Others v. State of Rajasthan, Through Public Prosecutor)
    • A division bench of Justice Arun Bhansali and Justice Pankaj Bhandari passed the decision while ruling on a criminal reference on whether the complainant or the first informant is a necessary party in bail applications under Sections 437, 438 and 439 (provisions for bail including pre-arrest bail) of Code of Criminal Procedure (CrPC).
    • the Court added, However, Section 439(1A) of Cr.P.C. was inserted by Act 22 of 2018 with effect from April 21, 2018, which makes presence of the informant or any person authorised by him obligatory at the time of hearing of the application for bail to the person under sub- section (3) of Section 376AB or Section 376DA or Section 376DB of the Indian Penal Code.
    • the bench said, It would be humongous task for the accused to serve notices upon all the victims and much greater task would be the determination of victims in a criminal case. Equally, troublesome would be the service on the victim without having their proper addresses.
    • the Court added, In many non-bailable offences, accused, who is in custody is not knowing the name of the victim and in such cases, his bail application would be delayed, which would be violative of Article 21 of the Constitution of India as his custody would be dehors the provisions of the statute.
    • the bench said, We are of the clear view that neither the statute directs impleadment of victim as a party-respondent nor the judgment of Jagjeet Singh & Ors. Versus Ashish Mishra & Monu & Anr. (supra) directs impleadment of victim as a necessary party. Jagjeet Singh & Ors. case only provides that the victim has a vested right to be heard at every stage of proceedings.
  12. On Wednesday the Kerala High Court granted anticipatory bail to Indian cricketer S Sreesanth in relation to a cheating case in which he is an accused. (S Sreesanth v. State of Kerala)
    • Justice Mohammad Nias CP passed the order after noting that the matter has been settled between the parties.
    • his plea stated, The petitioner (Sreesanth) out of his interest and passion for the game, gave tips and consultations to the 1st accused when he approached him with the proposal to start a cricketing academy that too in Kollur a holy land for Hindus being the Home ground of Lordess Mookambika Devi . His naivety never made him realize the trouble that was being portrayed by the 1st accused. The petitioner has never had any transaction with the complainant.
    • the petition stated, In fact the lodging of the complaint is only to harass the petitioner and to ruin his reputation . The petitioner is now playing in the Legends league Cricket and is performing well in the same. The petitioner is also being considered in the few other Professional League Cricket auction as well and he is keeping himself in good cricketing form. It is at this time that the petitioner shockingly and sadly, from news reports came to understand that a crime has been registered against him by the complainant alleging offence of cheating.
  13. On Wednesday the Lok Sabha passed the Telecommunications Bill, 2023 to replace the Indian Telegraph Act of 1885, the Indian Wireless Telegraphy Act of 1933 and the Telegraph Wires (Unlawful Possession) Act of 1950.
    • According to a Lok Sabha bulletin issued on Sunday, the President of India recommended the introduction of the Bill under Article 117(1) of the Constitution and also recommended its consideration under Article 117(3) as a Finance Bill.
    • the Bill was introduced by Union Minister Ashwini Vaishnaw on December 18. The votes to introduce the bill were cast minutes after the Minister sought permission for the same.
    • the Bill empowers the government to reclaim spectrum that remains unused. It also introduces provisions for sharing, trading, and leasing of spectrum. Entities will now have the option to surrender unused spectrum although they won’t receive compensation from the government for the same.
    • the Bill retains provisions from the Telegraph Act related to interception or surveillance of telecommunications. It grants the Union government the authority to assume control of a telecom network in the event of a public emergency or safety concerns.
  14. Recently the Punjab and Haryana High Court observed that a man or a woman may be bad in relationship, but that doesn’t necessarily mean that they will be bad parents for their child.  (Jaspreet Singh v. Roopali Dhillon)
    • Justice Archana Puri held that the paramount consideration in custody cases is the welfare of the minor child and not the statutory rights of the parents.
    • the order stated, A man or a woman may be bad for someone in a contextual relationship, the same does not necessarily mean that the person is bad for his/her child. A mother or father, may be morally bad in the societal sense, but that parent may be good for the child. The so called morality is created by society, based on their own ethos and norms and should not necessarily reflect in a contextual relationship between the parent and child.
    • the Court observed, When the couples at loggerheads and want to part ways, they may level extreme allegations against each other, so as to depict the other unworthy, to have the custody of the child. In the circumstances, unless and until, there is proven bad conduct of one of the parent, which makes him/her unworthy to claim the custody of the child concerned, the question can and shall be decided, solely looking into the question as to, ‘What would be the best interest of the child concerned.
    • the Court clarified, during the course of such meetings, it is expected and desired from both the parties to extend cooperation to each other and create congenial atmosphere for the child to have healthy interaction with the petitioner.
  15. On Wednesday the Gujarat High Court told the State government that people from other States have “high expectations” about Gujarat and therefore, the State has no other option but to excel in everything. (Amit Panchal vs State of Gujarat)
    • A division bench of Chief Justice Sunita Agarwal and Justice Aniruddha Mayee said if the State isn’t up to the mark then people from outside would be judgmental.
    • Chief Justice Agarwal observed, It’s in Gujarat, you are expected to do this (be upto the mark). People from outside Gujarat expect you to do this. Otherwise, they would say it doesn’t look like Gujarat. This is the approach of people coming outside Gujarat. They expect you to be upto the mark in everything. And if they find any litter they will say ‘this isn’t looking like Gujarat’. You have no option but to excel because of people’s expectations.
    • the Chief Justice said, By banning plastic you won’t be able to ban plastic use. You will have to give the public some alternative. Last time we asked you to work out something to provide alternative to plastic bottles but today we see nothing on record.
    • the Court explained, It isn’t as if there is no alternative at all. In Gujarat itself, alternatives are being used properly in Gir area only and that is going on very well. They are using steel bottles. They have dispensers, which give steel bottles (to tourists) for drinking water. On their way back, they will have to return the bottles and they get their token deposit money.
    • the bench opined, It isn’t only this one scheme Mr Panchal. Every scheme is there but only what is needed is a will. If you have the will to do something you will get an alternative but if you don’t have the will, you would not be able to find any alternative.
  16. On Tuesday the Aurangabad bench of Bombay High Court directed the Maharashtra government to frame guidelines for conducting test identification parades (TI parades) in cases under the Protection of Children from Sexual Offences (POCSO) Act.  (Parvej Khan v. State of Maharashtra & Ors.)
    • A division bench of Justices Vibha Kankanwadi and Abhay Waghwase directed the State government to come up with a standard operating procedure (SOP) to keep details of the victim confidential while participating in the TI parade.
    • the Court said, We direct State to formulate suitable guidelines to be adhered to, while conducting TI parade in cases attracting provisions of Protection of Children from Sexual Offences Act, 2012 and to further suggest Standard Operating Procedure to be adopted, keeping in mind the aspect of confidentiality of details of the victim and also suggest necessary precautionary measures to be taken while making victim participate in TI parade for identifying perpetrator, with requisite infrastructural set up for the same.
    • the Court observed, We have noticed that in spite of directions issued by the Apex Court time and again regarding meticulous compliance of Standard Operating Procedure to be adopted during collection of biological and non-biological evidence and its preservation to avoid its degradation and to further maintain its integrity, the stakeholders like medical experts, who conducted physical examination of both, victim and accused, and retrieved samples, so also the police machinery and the forensic experts have shown utter disregard to the procedure contemplated and spelt out in the form of guidelines.
    •  the bench ordered, We take this opportunity to bring it to the notice of the State as well as prosecution that, all stakeholders like police, medical experts, forensic experts and even prosecutors to be sensitive to the need of proper collection, sampling, preservation and safe custody to rule out possibility of diminishing and/or degrading the quality of evidence. Such authorities need to keep themselves well informed and updated on the guidelines issued by Health Ministry/Home Ministry.
  17. On Wednesday the Bombay High Court observed while granting him bail in the Bhima Koregaon case of 2018 there is no prima facie evidence to show that activist Gautam Navlakha was involved in any terrorist act under the Unlawful Activities Prevention Act (UAPA).  (Gautam Navlakha v. National Investigation Agency & Ors.)
    • A division bench of Justices AS Gadkari and SG Dige said that the evidence on record indicated that Navlakha can at the most be said to have been a member of the banned CPI (Maoist) and therefore, it would only attract offences under Sections 13 (unlawful activities) and 38 (membership of terrorist organisation) of UAPA.
    • the court noted, In the present case, the incriminating material as adverted herein above does not in any manner prima facie leads to draw an inference that, Appellant has committed or indulged in a ‘terrorist act’ as contemplated under Section 15 of UAPA. According to us, the record prima facie indicates that, it was at the most the intention of the Appellant to commit the alleged crime and not more than it. The said intention has not been further transformed into preparation or attempt to commit a terrorist act, to attract Section 15 of the UAPA.
    • the court said, Navlakha is in pre-trial incarceration for more than three years and eight months. The charge sheet consists of about 20,000 pages in 54 volumes and the prosecution has cited 370 witnesses in it. The trial court has submitted a report dated September 18, 2022, stating that it will require more than a year to frame the charge. As a matter of fact, to date, the trial Court has not framed the charge. The possibility of a trial of the Appellant being concluded in the near future is very bleak.
  18. Recently the Calcutta High Court refused to change or postpone the date of Teachers Eligibility Test (TET) as requested by BJP parliamentarian Dilip Ghosh whose Bhagavad Gita Chanting event is likely to clash with the exam date on December 24.  (Dilip Ghosh vs State of West Bengal)
    • A division bench of Chief Justice TS Sivagnanam and Justice Hiranmay Bhattacharyya refused to grant the request made by Ghosh who is also the president of BJP’s West Bengal unit. 
    • the Court observed, In our view, it is for the appropriate authority namely, the Education Board and the academicians and administrative authorities to consider all the factors before fixing the date of the exams.
    • the order said, Thus, in the given facts of the case, the direction sought for in the instant petition cannot be granted. However, all we can observe is that the authorities of the State as well as the Kolkata Police shall ensure that students are not in any manner disrupted from reaching their centres for the exams to be held on December 24.

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