Today’s Legal Updates

Tuesday, 20th June 2023

Legal Awareness: – CONSTITUTION OF INDIA

Part – IXA THE MUNICIPALITIES

Article – 243ZC Part not to apply to certain areas.

  1. Nothing in this Part shall apply to the Scheduled Areas referred to in clause (1), and the tribal areas referred to in clause (2), of article 244.
  2. Nothing in this Part shall be construed to affect the functions and powers of the Darjeeling Gorkha Hill Council constituted under any law for the time being in force for the hill areas of the district of Darjeeling in the State of West Bengal.
  3. Notwithstanding anything in this Constitution, Parliament may, by law, extend the provisions of this
    Part to the Scheduled Areas and the tribal areas referred to in clause (1) subject to such exceptions and modifications as may be specified in such law, and no such law shall be deemed to be an amendment of this Constitution for the purposes of article 368.

Today’s Legal Updates: 

  1. On Tuesday the Madras High Court asked the Tamil Nadu (TN) government why proceedings of the State assembly cannot be telecast at the end of every assembly session after removing footage of all the expunged remarks. (Vijaykant v The Secretary)
    • A bench of Chief Justice SV Gangapurwala and Justice PD Audikesavalu also directed TN Advocate General R Shunmugasundaram to clarify whether a proposal for live telecast of zero hour speeches was already under consideration.
    • The bench was hearing two public interest litigation (PILs) petitions filed in 2012 and 2015 by two regional parties from the State seeking live telecast of the TN Assembly proceedings.
    • On Tuesday, Velumani’s counsel, Senior Advocate Vijay Narayan told the Court that at a time when the mobile application, ‘National eVidhan App,’ allows one to watch the proceedings of the Lok Sabha, Rajya Sabha, and all legislative assemblies across the country on one’s phone, Tamil Nadu telecasts only truncated portions of the assembly proceedings on the app.
  2. On Tuesday evening A request to prioritise the hearing of a case concerning the upcoming West Bengal Panchayat elections drew the ire of the Calcutta High Court, with the Court orally observing that while some people have the luxury of fighting elections, others are dying because they do not have access to basic needs.
    • The bench of Chief Justice TS Sivagnanam and Justice Ajay Kumar Gupta was beginning to wrap up hearings for the day when a lawyer sought the Court’s indulgence to hear the case concerning panchayat elections tomorrow.
    • Chief Justice Sivagnanam remarked, Every day morning, this is the issue … What about people who are standing in the queue? One day you come and sit in this seat. Yesterday, 65 mentioning slips have been received.
    • the lawyer told the Court, We have become helpless, people are dying.
    • the Chief Justice replied, What to do? You are dying because you want to fight the elections. People are dying without employment, without food, without shelter.
    • the counsel submitted, Milord, this is the only remedy we have after 5 years … to ensure food and shelter.
    • the Chief Justice remarked, You want to face the luxury of elections. That (another) fellow, for basic needs, he is suffering.
    • the Court remarked, The moment it is listed, what you will do is, at 10.30 or 10.45 am, you will mention to take it up at 12.
    • The bench, Then we release the matter, if you say the Court has got an understanding…We are very sorry. You take the matter elsewhere.
    • the lawyer assured the Court, I leave it your Lordships, as per your Lordships’ convenience. We won’t trouble your Lordships anymore.
    • the Chief Justice said, Your clients know what it is. There is a limit to all of this.
  3. On Monday the Supreme Court issued notice to the Telangana government and Kadapa Member of Parliament (MP) YS Avinash Reddy in a petition challenging grant of anticipatory bail to Reddy in connection with the murder of former MP YS Vivekananda Reddy.  (Dr Suneetha Narreddy vs YS Avinash Reddy and anr)
    • A vacation bench of Justices Surya Kant and MM Sundresh proceeded to list the matter for hearing on July 3 along with a connected matter.
  4. On Tuesday the Gujarat High Court directed the port and customs authorities at Deendayal Port, Kandla to arrest a merchant ship, MT Syrma.
    • Justice Nikhil S Kariel ordered the ship’s arrest along with its hull, engines, gears, tackles, bunkers, machinery, apparel, plant, furniture and equipment and all appurtenances on two separate suits filed by Patanjali Foods and Auriga Shipping Management.
    • The suit by Patanjali alleged short delivery of 5000 Metric Tonnes (MT) of RBD Palm Olein (Edible Grade), which was supposed to be delivered at Kakinada Port.
    • Patanjali received only 4930.840 MT, resulting in a shortage of 68.734 MT or 1.37%. Letters highlighting the apparent discrepancy and requesting monetary compensation, as well as a legal notice, were sent, but the Master of the vessel did not respond to any of them, it was was claimed.
    • Patanjali contended that they had a maritime claim falling under Section 4(1)(d) and 4(1)(f) of The Admiralty (Jurisdiction & Settlement of Maritime Claims) Act against the vessel for which they filed the suit and prayed for arrest of the ship.
  5. On Tuesday the Gauhati High Court Chief Justice, Sandeep Mehta said that he would look into putting in place a formal process/ procedure to govern filing of applications for early hearings of listed cases.
    • the Chief Justice to remark, I do not know what is the procedure here, but the appropriate procedure to my mind, if you want to get the hearing matter listed, is to file an application for early hearing. There must be a provision in the [Gauhati High Court] rules.
    • the Chief Justice said, We will look into it, because there has to be proper provision whereby an application can be filed for early hearing.
  6. On Tuesday the Kerala High Court observed that while considering the issue of child custody, a mother cannot be considered bad for the welfare of the child, just because she may be viewed as morally bad in the eyes of the society.  (Aneesh F v Shefeekmon KI)
    • A division bench of Justices A Muhamed Mustaque and Sophy Thomas said that the so-called morality created by society is based on their own ethos and norms and need not necessarily reflect in a contextual relationship between a parent and child.
    • the High Court observed, In a matter related to the child’s custody, the welfare aspect alone has to be considered first. A man or woman may be bad for someone in a contextual relationship, but that does not necessarily mean that the person is bad for his/her child. A mother may be morally bad in the societal sense, but that mother may be good for the child as far as the welfare of the child is concerned.
    • the Court said in its judgment, There may be many circumstances when one may have to leave the matrimonial home. If a woman is found with another person, it cannot lead to an assumption that she went for pleasure. The moral judgment reflected in such orders would defeat the objective of inquiry in the matters of child custody.
    • the Court ordered, Taking note of the facts and circumstances, we are of the view that cyclical custody to parents would be in the best interest of both. We give custody to the mother on alternate Fridays at 5 pm till the next Friday at 5 pm. The child shall be handed over and returned from the premises of the family court, Alappuzha.
  7. On Tuesday the Bombay High Court clarified that it has not stayed the operation of the Reserve Bank of India (Frauds Classification and Reporting by Commercial Banks and Select FIs) Directions of 2016 (master circular) pertaining to bank fraud.  (SS Hemani v. RBI & Ors.)
    • A division bench of Justices GS Patel and Neela Gokhale issued the clarification in a 9-page order published today.
    • the High Court said, We have not stayed the operation of the Master Circular (which has not been struck down by the Supreme Court decision). The Supreme Court has only read certain requirements into the Master Circular. It follows, therefore, that actions under the Master Circular consistent with the Supreme Court judgment and decision may undoubtedly proceed.
    • the Court said, The Supreme Court decision clearly states that no hearing is necessary before filing of FIRs, even if the charge is of fraud accounts. In other words, the investigating agencies are at liberty to file and proceed with FIRs without reference to any findings by the bank under the Master Circular in question. Equally, all remedies available in law to private parties remain unaffected by this order and may be pursued.
    • The circular contained two provisions: 
      • Once a bank classifies an account as fraud, it is the responsibility of that bank to report the same to the Central Repository of Information on Large Credits platform to alert other banks. 
      • If a bank decides to straight away classify the account as a fraud, it is obligated to report the fraud to RBI within 21 days and report the case to any investigating agency.
  8. On Tuesday the Kerala High Court came down heavily on a family court judge for the distasteful language used in an order granting sole custody of a minor child to the father.  (Aneesa F v Shefeekmon KI)
    • A division bench of Justices A Muhamed Mustaque and Sophy Thomas noted that the family court judge had made unsavoury comments against the mother of the child.
    • the High Court said, What has disturbed us is the language used by the Family Court Judge. Merely for the reason that a women is found in the company of another male, Family Court came to the conclusion that she went for pleasure with someone else. The highly distasteful language depicts the mind set of an officer of high rank in the district judiciary.
    • the High Court’s order stated, There may be many circumstances when one may have to leave the matrimonial home. If a woman is found with another person, it cannot lead to an assumption that she went for pleasure. The moral judgment reflected in such orders would defeat the objective of inquiry in the matters of child custody.
    • the Court said, A mother may be morally bad in the societal sense, but that mother may be good for the child as far as the welfare of the child is concerned. 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 a parent and child.
  9. On Tuesday the Karnataka High Court issued guidelines for magistrates to follow when granting permission to the police to investigate non-cognizable offences upon request by either the police or a complainant.  (Vijesh Pillai vs The State of Karnataka and Anr.)
    • Justice M Nagaprasanna emphasised that allowing the registration of a first information report (FIR) should not be treated as a frolicsome act since a magistrate cannot pass orders that do not bear a semblance of application of mind.
    • the Court’s order stated, Permitting registration of a FIR cannot be a frolicsome act on the part of the Magistrate. The Magistrate exercises power under sub-section (2) of Section 155 of the Cr.P.C., In doing so, it cannot be that he could pass orders which do not bear a semblance of application of mind.
    • the Court said, Therefore, the learned magistrates who pass such orders have contributed/ contributing to the docket explosion before this Court. It is rather unfortunate that the learned Magistrates are contributing to the pendency of such cases in the judiciary itself. It is high time now, that the magistrates should mend their ways and apply their mind to the requisitions received and then pass appropriate orders.
    • the Court invoked its powers under Section 483 (duty of High Court to exercise continuous superintendence over Courts of Judicial Magistrates) of the CrPC to issue the following guidelines to magistrates:
      • Magistrates shall record as to who has submitted the requisition for investigation, whether it is the informant or the Station House Officer, and make an endorsement of receipt of requisition in a separate order sheet.
      • Magistrates shall not pass any order if the complaint is not enclosed to the requisition.
      • Magistrates shall notice and examine the contents of the requisition and record a prima facie finding as to whether it is a fit case to be investigated. If it is not a fit case to be investigated, the magistrates shall reject the prayer made in the requisition. The order of the magistrates shall bear application of mind, not by rendering a detailed order or detailed inquiry at that stage, but it shall bear application of mind.
      • Magistrates should forthwith stop using the words “permitted”, “perused permitted” or “perused requisition permitted registration of FIR” on the requisition itself. Magistrates shall pass separate orders and maintain a separate order sheet with regard to the grant of such permission. Granting permission on the requisition would be contrary to law.
      • The order of the magistrates shall contain all the aforesaid. Any deviation from what is directed will be construed as the magistrates contributing to the huge pendency of cases by their callous action of passing inappropriate orders and it would be viewed seriously.
  10. On Tuesday the Kerala High Court directed the State government to halt payment of instalments for the Safe Kerala Project, which involved the installation of Artificial Intelligence cameras (AI cameras) across the State with a view to reduce road accidents.
    • A division bench of Chief Justice SV Bhatti and Justice Basant Balaji directed the State not to make any further payments until further orders are passed by the Court.
    • the order dictated by the bench said, We call upon the respondents to not make any payment, until further orders from this court or after intimation to this court, of any of the annuities through which the present project is implemented.
    • the bench recorded in its order, During and in the course of hearing we have appreciated the arguments of the learned counsel Mr George poonthottam and while ordering notice we prefer to place on record that the present PIL petitioners, who have been holding positions of trust and public office, desire transparency, accountability and complete probity in the discharge of public trust reposted by the people.
    • the bench said, the petitioners are given the liberty to file affidavits on the standard they adhere to their heart and practice in public life and demand the same standard from respondents in the decision-making process.
    • the order, After perusing the exhibits we are convinced that the matter needs to be examined from the perspective of change in dynamics of the implementation of the projectwhether it is objective, bonafide or vitiated by any of the collateral reasons stated in the petition, whether the change of mode from BOOT to annuity the exchequer is directly or indirectly made to part with more than what is envisaged in the beginning And also that whether the issuance of ex P27 (Govt order approving Safe Kerala Project) without actually referring to if the matters to be decided were taken up consideration in the cabinet.
  11. On Tuesday the Gauhati High Court criticised the State government for failing to act against the unabated encroachment of heritage sites in Assam, particularly those related to the Ahom dynasty.
    • Chief Justice Sandeep Mehta and Justice Suman Shyam proceeded to ask Assam Advocate General (AG) General Devajit Saikia to get instructions within four weeks on whether the State government is prepared to come up with a comprehensive plan to address the issue.
    • the Court observed, It prima facie appears to us that illegal encroachment of the Heritage sites related to the Ahom Dynasty including those of Chaolung Sukapha, the father of Ahom kingdom, is going on unabated due to the absence of any protective steps taken by the State Government.
    • the Court said, Mr. D. Saikia, learned Advocate General of Assam is requested to obtain instructions and apprise this Court on the next date fixed as to whether, the State is prepared to come up with a comprehensive plan for protection of the monuments pertaining to Ahom dynasty, including the coal mines.
  12. The Himachal Pradesh High Court held on June 12 that maternity leave is a fundamental human right and its denial is violative of Articles 29 and 39D of the Indian Constitution. (State of Himachal Pradesh v Sita Devi)
    • A bench of Justices Tarlok Singh Chauhan and Virender Singh observed that the object of maternity leave is to protect the dignity of motherhood by providing full and healthy maintenance to the woman and her child.
    • the Bench added, Maternity leave is intended to achieve the social justice to women, motherhood and childhood, both require special attention.
    • the Court underscored, Maternity leave is a fundamental human right of the respondent, which could not have been denied. Therefore, clearly the action of the petitioner is violative of Articles 29 and 39D of the Constitution of India.
  13. On Monday the Calcutta High Court criticised the State police for not allowing a chariot procession in Sankrail, Howrah during the Jagannath Rath Yatra this year, noting that the conditions set by the police amounted to interference with religious practice.  (Manoj Mishra v. State)
    • Justice Rajasekhar Mantha observed that it would be highly inappropriate for the police to mandate that the deity must travel without a chariot for approximately 300 meters during the journey. The same would negatedefeat and compromise the object and purpose of the Rath Yatra.
    • the order, Over the decades and centuries, people of all the religious denominations have participated with joy and/or actively supported Rathyatra in this State. To restrict a Rathyatra, and to impose conditions therefor would amount to interference with a religious practice which has not happened in this State or any other part of the country, till date.
    • the Court said, A Rathyatra as folklore and mythology would have, meant for the deity Lord Jagannath and Balabhadra to travel on a chariot from their house to their sister’s house/aunt’s house to visit and to see an unwell aunt. Such festival and practice is being followed in this Country for thousands of years.
    • the Court ordered, The petitioner shall as already directed earlier, maintain peace and harmony in the procession of the Rathyatra. The order dated June 16, 2023 remains without being modified.
  14. On Tuesday the Supreme Court refused to interfere with an order of the Calcutta High Court directing deployment of central forces for the upcoming panchayat polls in West Bengal. (State of West Bengal and ors vs Suvendu Adhikari and ors)
    • A vacation bench of Justices BV Nagarathna and Manoj Misra at the outset observed that the High Court’s order was meant to ensure free and fair elections in the State.
    • the Bench ordered, Order of High Court does not call for any interference. We are not interfering with any direction of the High Court. Appeals stand dismissed.
    • the Court demanded, Holding elections cannot be a license for violence and HC has seen earlier instances of violence, Elections cannot be accompanied by violence. If persons are not able to file their nominations and if they are finished off while they are going to file it then where is the free and fair election.
    • Senior Advocate Meenakshi Arora, appearing for the State Election Commission (SEC), 189 poll booths have been recognised as sensitive… I am aggrieved by 2 directions of the High Court … it says Election Commission should decide on requisition of forces and deployment has to be in sync with sensitive and non sensitive ones.
    • the Senior Counsel explained, We can only ask for the force and from where they get it is not something we look at.
    • Senior Advocate Harish Salve said that It is only the source of getting the forces and it is nothing on deployment.. no High Court will ever direct that head of the force will decide on deployment… there is a problem in this state and problem has manifested several times.
    • State is just embarrassed to say that we do not have forces but we do not want central forces.
  15. On Tuesday the Manipur High Court directed the State authorities to provide limited internet services to the public at designated places under their control in the State.  (Aribam Dhananjoy Sharma and Ors. vs State of Manipur and Ors.)
    • Justices Ahanthem Bimol Singh and A Guneswar Sharma passed the order in a batch of public interest litigation (PIL) petitions seeking the restoration of internet services in the State.
    • the Court’s order, Taking into consideration the hardship faced by the public specially with regard to the ongoing admission process of the students in the State and to enable the public for carrying out their urgent and essential services, the State authorities are directed to provide limited internet service to the public in some designated places under the controlled of the State authorities.
    • This followed a Manipur High Court order instructing the State government to “consider the inclusion of the Meetei/Meitei community in the Scheduled Tribe list.”
  16. On Tuesday the Supreme Court refused urgent listing of the interlocutory application (IA) filed by the Manipur Tribal Forum alleging that the Central government’s assurances to the top court with regard to the recent outbreak of violence in Manipur are false and non-serious.
    • A vacation bench comprising Justices Surya Kant and MM Sundresh took note of the issue as a serious issue of law and order, but said that it will hear the case only after the Court resumes normal functioning following its summer break.
    • the Court remarked, This is a serious issue of law and order .. I hope court is not required to pass orders for army intervention etc.
    • Senior Advocate Colin Gonsalves said, This institution is our last hope and even after assurance the tribals are being killed.
    • Solicitor General Tushar Mehta said, So sorry this is being said.
    • the Court said, We will list the case on July 3 and not before that.
    • the Court was told, 237 churches and 73 administrative quarters have been torched and 141 villages destroyed.
    • the forum submitted, The assurances of the authorities are not useful anymore and made in a non-serious fashion and are not even intended to be implemented. The reason why this hon’ble court ought not to rely anymore on the empty assurances given by UOI (Union of India) is because both the UOI and the Chief Minister of the State have embarked jointly on a communal agenda for the ethnic cleansing of the Kukis.
  17. On Tuesday the Kerala High Court sought the response of the State government and two Rashtriya Swayamsevak Sangh (RSS) members on a plea alleging that members of the RSS have been conducting mass drills and weaponry training by illegally encroaching on the premises of Sree Sarakara Devi Temple, Chirayinkeezhu.  (G Vyason & Anr. v State of Kerala & Ors.)
    • A bench of Justices Anil K Narendran and PG Ajithkumar issued notice to the State, Travancore Devaswom Board and RSS members and posted the case for further consideration on June 26, Monday.
    • the plea said, The 6th and 7th respondents (2 RSS members) along with their henchmen shout loud slogans as a part of their mass drill /weaponry training,thus disrupting the peaceful and serene atmosphere required to be maintained at a temple.Petitioners hence begs to submit that due to the above actions of the 6th and 7th respondents and their henchmen,ardent devotees belonging to senior citizens, women and children category find it much difficult to visit temple during aforementioned hours due to loss of peace of mind, causing mental stress, agony and loss of calm atmosphere required to be maintained during meditation and offering prayers at `Sree Sarkara Devi Temple.
    • the plea said, The unpleasant smell emanating from the usage of the above products by the 6th and 7th respondents along with their henchmen is causing great discomfort to the devotees visiting the temple, especially senior citizens, women, and children.
    • the plea said, Right to worship is a fundamental right guaranteed under Article 21 of the Constitution of India.

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