Today’s Legal Updates
FRIDAY, 21st October 2022
Legal Awareness :- CONSTITUTION OF INDIA
Part – Vl THE STATES
CHAPTER- II THE EXECUTIVE
The Advocate-General for the State
Article – 167 Duties of Chief Minister as respects the furnishing of information to Governor, etc.
It shall be the duty of the Chief Minister of each State—
(a) to communicate to the Governor of the State all decisions of the Council of Ministers relating to the administration of the affairs of the State and proposals for legislation;
(b) to furnish such information relating to the administration of the affairs of the State and proposals for legislation as the Governor may call for; and
(c) if the Governor so requires, to submit for the consideration of the Council of Ministers any matter on which a decision has been taken by a Minister but which has not been considered by the Council.
Today’s Legal Updates :-
- On Friday Senior Advocate Kapil Sibal lamented how the cases affecting the ruling dispensation are posted before certain judges, thereby, resulting in favourable orders for the government.
- he said, Only in rarest of cases sentences (after conviction) are suspended but I have never heard acquittal being suspended on a special Saturday hearing. The institution has to be concerned about itself and it is disturbing.
- The issue, Sibal said, is with how the Chief Justice of India (CJI) exercises his master of roster of powers to allocate cases.
- he issue is with master of roster. Most cases dealing with government go to a particular judge. That is not automatically assigned. So why is that happening.
- Sibal said, will be a part of this mobilisation. If you go to conquer Mount Everest you fear but still you go. It is the love of our country which will rid us of this fear. Ultimately toh sirf jail hi jana padega (At the most, you will have to go to jail).
- Prior to 2014, the situation was not that bad. But after 2014 no institution is willing to stand up. Look at the University system and position of vice chancellor.. see what is happening in the judiciary, police force, Election Commission; media is the worst.
- he opined, Even under ordinary laws the machinery is probing with a polluting mind. The law does not matter, it is the agency which is dealing with the law and implementing the same. It is not just the stringency of the law.
- If you misuse the law and the judiciary is silent, then what do you to. Silence of the judiciary is the most vocal part of the Indian system. What to do.
- He also took a dim view of the Bar and their inaction.
- Lawyers are silent and they see the profession as a money making venture. Lawyers must stand up without fear.
- He urged lawyers to bring about social mobilisation so as to secure justice.
- I want to personally do something and tell the lawyers of the country that they have a role to play in social mobilisation of this country. We need a platform for insaaf and justice. Insaaf requires sacrifice and you cannot be sitting in an office.
- dvocate Aparna Bhat said that there is fear among lawyers and even if they want to raise their voice, there is a vacuum and lack of support.
- Sibal replied, If you go to conquer Mount Everest you fear but still you go. It is the love for our country which will rid us of this fear. Ultimately toh sirf jail hi jana padega (At the most, you will have to go to jail).
- On Friday the Supreme Court dismissed a public interest litigation (PIL) petition seeking deletion of negative remarks and references about Ayurveda from the Wikipedia article on the ancient Indian medical system.
- the plea said, The contents of the matter shown on Wikipedia totally malign the natural system of medicine which has a history of more than 3000 years and is widely respected and accepted the world over.
- the petition said, the contents of the article does harm to the hard earned reputation of Ayurveda, built through sheer dedication and constant research over a substantial span of time … the article published on its website is purely written by someone with a prejudiced mind to support only modern medicine/Allopathic medicine system.
- the contents of the article does harm to the hard earned reputation of Ayurveda, built through sheer dedication and constant research over a substantial span of time … the article published on its website is purely written by someone with a prejudiced mind to support only modern medicine/Allopathic medicine system.
- On Friday the Central government has opposed a petition filed by Bharatiya Janata Party (BJP) spokesperson and lawyer Ashwini Kumar Upadhyay before the Supreme Court seeking uniform grounds and procedure for divorce and uniform procedure for adoption and guardianship for all communities across the country. (Ashwini Kumar Upadhyay v Union of India)
- Law Commission Report
- the affidavit said, In view of the importance of the subject matter and sensitivity involved which requires in-depth study of the provisions of various personal laws governing different communities, the Central government requested the Law Commission of India to undertake examination of various issues relating to uniform civil code and to make recommendations.
- the affidavit stated, It is a matter of policy for the elected representatives to decide and no direction in this regard can be issued by the Court.
- In the present petition, there is nothing to suggest that the affected person has taken up any cause and approached the court. Hence, the present petition is not maintainable.
- Common adoption law
- The argument that Muslims, Christians and Parsis did not have a common law government adoption was denied by the government, stating that they could approach the court under the Juvenile Justice (Care and Protection of Children) Act for adoption.
- Unclean hands
- This could have legal nexus with the issue involved in this PIL. Therefore, the petitioner has not approached this court with clean hands.
- It had also suggested codification of certain aspects of personal laws to limit the ambiguity in interpretation and application of these personal laws.
- Law Commission Report
- On Friday the Madras High Court said that the State was bound by the Constitution to promote the educational interests of those belonging to the Scheduled Caste and Scheduled Tribe (SC/ST) communities and to protect them from social injustice. (T Udhaykumar v. Union of India and ors)
- the State shall promote with special care the educational and economic interests of the weaker sections of the people, especially Scheduled Castes and Scheduled Tribes from social injustice. Therefore, the second respondent being instrumentality of the State cannot refuse to award the four marks to the appellant who belongs to the weaker section of the society.
- the Bench said, Therefore, on the peculiar facts and circumstances of this case, since the authorities concerned have not responded to the grievance of the appellant/writ petitioner, accepting the bona fide reasons, in the light of the settled legal position that a litigant should not suffer for the fault committed by the Advocate, as the appellant who is aspiring to pursue the medical course during the academic year 2022-23, we are inclined to entertain the writ appeal.
- On Friday the Supreme Court ordered the Delhi, Uttar Pradesh and Uttarakhand Police to take suo motu action in cases of hate speech without looking at the religion of the offenders.
- the Court ordered, Respondents will issue directions to their subordinates in this regard without looking at the religion of the accused, so that the secular nature of India is preserved.
- the order said, File a response as to what action has been taken for the speeches highlighted.
- Justice Joseph lamented, Where have we reached? What have we reduced religion to? It is tragic. And we speak of scientific temper.
- Justice Roy also weighed in, Statements are certainly very shocking for a country that is to be religion neutral.
- the petition said, A programme was conducted on 30.09.2022 on Aaj Tak, a leading news channel claiming that Muslim men disguise themselves as Hindus and enter the garba pandal to promote love jihad. The shocking claim was made by the host on his prime time show. He then went on to show some ground reports that they have collected for the research which turned out to be an interview with the leader of Bajrang Dal.
- Sibal said, These events are happening everyday.
- the Bench queried, On a lighter note, when you were Law Minister did you propose anything?
- Sibal said, Yes, but there was no consensus. Please see this statement, it was by a BJP leader asking to boycott them. What are they propagating? We keep coming to Court. Police are present in such events.
- the Bench asked, Are Muslims also making hate speeches?”
- Sibal replied, If so, they should also not be spared.
- On Tuesday the Rajasthan High Court dismissed a plea seeking directions to restrain leaders of political parties from seeking votes in the name of religion, caste, community, language or entering religious sites during election campaigns. (Sant Vaidehi Balabh Dev Acharyaji Maharaj v State of Rajasthan)
- the Court said, It is settled law that successive writ petitions for the same cause of action are not maintainable and that filing of second writ petition for the same purpose is an abuse of the process of law.
- the petitioner had stated in that plea, The candidates and leaders of the political parties may be restrained from visiting the religious places during election campaign.
- It was dismissed on October 23, 2018 with the Court observing that, “seeking vote in the name of religion, caste, community, language etc. is statutorily prohibited and, therefore, no general directions in this regard are required.”
- the Court observed, In view of the above, we are not inclined to exercise our discretionary jurisdiction in this writ petition and dismiss the writ petition with the directions to the Chief Election Commissioner of India to objectively consider and pass appropriate order on the representation of the petitioner, if any, made in this connection earlier.
- On Friday the Supreme Court stayed an order of the Madhya Pradesh High Court directing the Central Bureau of Investigation (CBI) to probe “irregularities” in recognition given to 33 nursing institutions by the MP Nursing Council in 2019-2020. (Preston College Through Its Director Shri Prabodh Tripath v State of Madhya Pradesh)
- the High Court’s September 18 order had recorded, We are satisfied prima facie that the Authorities have acted in a slipshod manner contrary to the provisions of the Act and the Rules.
- the High Court had observed, This Court could only lay hands over the original records of the 35 colleges only. The possibility of such grave illegalities and irregularities committed by statutory bodies in respect of other colleges in the State of Madhya Pradesh also cannot be ruled out.
- On Friday A Mumbai court rejected bail plea filed by Nationalist Congress Party (NCP) leader and former State Home Minister Anil Deshmukh in the corruption case filed against him.
- the Court said, In the present case it is found clear that huge amount (of money) is involved in which economy of nation in involved and economy of country needs to be considered.
- the judge ordered, I am of the opinion that the accused need not be released on bail. Hence, present bail application is rejected.
- On Friday the Delhi High Court dismissed a public interest litigation (PIL) petition challenging the deputation of Indian Army officers and personnel to Assam Rifles. (AR 196 Commandant Wazir Singh Panghal Retd v Union of India and Ors)
- the Court said, In the considered opinion of this Court, the relief sought by the Petitioner relates to ‘service matter’ and in light of the judgment passed by the Apex Court in Dr. Duryodhan Sahu & Ors v. Jitendra Kumar Mishra & Ors., (1998) 7 SCC 273, the present writ petition is not maintainable.
- the Court noted in its order, The relief not granted by the Division Bench again forms part of the prayer clause in the present PIL.
- On Friday the Supreme Court dismissed a plea seeking transfer of the trial in the abduction and assault case against Malayalam actor Dileep from the judge currently hearing the case to another judge.
- the court further reasoned, What is clear is in such matters High Court and only High Court has to take a call.
- the Court said, Any observation they make is used against them. We are sorry to say, but we are all responsible for it, same fashion is going on in High Courts as well.
- On Friday the Kerala High Court dismissed a plea by the three accused persons in the human sacrifice challenging the order of a Magistrate Court that had granted the custody of the accused to the police for 12 days. (Muhammed Shafi v State of Kerala)
- the Court ordered, As rightly argued by the learned DGP, the accused cannot dictate in what manner the investigation has to be carried out. I see no illegality or impropriety in the impugned order. Therefore this revision petition is liable to be dismissed.
- the High Court observed, The grounds raised by the investigating officer for custody would show that the above mentioned 22 specific areas have to thoroughly investigated considering the peculiar nature of the case. Those were taken into account by the court below while passing the order. Thus, it is clear that the court below passed the impugned order with great care and caution.
- On Thursday the Delhi High Court granted interim protection from arrest to senior IAS officer and former Andaman and Nicobar Chief Secretary Jitendra Narain in a rape case filed against him. (Jitendra Narain v State (NCT of Delhi) & Anr)
- the Court said, Considering the submissions and without giving any opinion on merits, I deem it appropriate to allow the petition to avail his legal remedy to approach the Court at Port Blair till 28.10.2022 and is protected only till that date. This order of protection from arrest shall automatically be vacated on 29.10.2022.
- the Ministry had said, The Ministry received a report on 16.10.2022 from Andaman & Nicobar Police regarding the alleged sexual assault of a lady by Sh. Jitendra Narain, IAS (AGMUT:1990), the then Chief Secretary, Andaman & Nicobar Islands and others. As the Report indicated the possibility of grave misconduct and misuse of official position on the part of Sh. Jitendra Narain, IAS (AGMUT:1990), the Union Home Minister directed to take immediate strict action against the officer concerned as per law.
- On Friday the Supreme Court dismissed a petition reconsideration of the July 27 verdict of the Court upholding the validity of provisions of the Prevention of Money Laundering Act (PMLA).
- the CJI while stating that the plea was misconceived, As soon as you have a problem with a provision you assail the act. It is not as if you face a trial. It is only a prima facie case.
- the Court ordered, You want to refer Vijay Madanlal Choudhary (July 27 judgment on PMLA) to larger bench? There cannot be such prayers. Sorry. This plea is misconceived and thus dismissed.
- The Court had also upheld the validity of Sections 3 (definition of money laundering), 5 (attachment of property), 8(4) [taking possession of attached property), 17 (search and seizure), 18 (search of persons), 19 (powers of arrest), 24 (reverse burden of proof), 44 (offences triable by special court), 45 (offences being cognizable and non-bailable and twin conditions for grant of bail by court) and 50 (statements made to ED officials).
- On Friday the Supreme Court dismissed a plea seeking the opening of certain rooms of the Taj Mahal to put to rest the “alleged history” of the monument including claims that it it was a Shiva temple, Tejo Mahalaya. (Dr Rajneesh Singh v. Union of India and Ors)
- the apex court ordered, the High Court was not in error in dismissing the petition, which is more of a publicity interest litigation. Dismissed.
- On Thursday the Competition Commission of India (CCI/Commission) on Thursday imposed a penalty of ₹1337.76 crore on Google for abusing its dominant position in multiple markets in the Android mobile device ecosystem.
- a press release issued by the CCI read, The Commission has imposed monetary penalty as well as issued cease and desist order against Google from indulging in anti-competitive practices that have been found to be in contravention of the provisions of Section 4 of the Act.
- Summary of findings
- Mandatory pre-installation of the entire Google Mobile Suite with no option to un-install the same amounts to imposition of unfair condition on the device manufacturers;
- Google used its dominant position in the online search market resulting in denial of market access for competing search apps;
- Google leveraged its dominant position in the app store market for Android OS to protect its position in online general search;
- Google leveraged its dominant position in the app store market for Android OS to enter as well as protect its position in online video hosting platform (OVHP) market through YouTube;
- Google, by making pre-installation of Google’s proprietary apps (particularly Google Play Store) reduced the ability and incentive of device manufacturers to develop and sell devices operating on alternative versions of Android.
- the CCI press release explained, Apple’s business is primarily based on a vertically integrated smart device ecosystem which focuses on sale of high-end smart devices with state of the art software components. Whereas Google’s business was found to be driven by the ultimate intent of increasing users on its platforms so that they interact with its revenue earning service i.e., online search which directly affects sale of online advertising services by Google.
- By virtue of the agreements discussed above, Google ensured that users continue to use its search services on mobile devices which facilitated un-interrupted growth of advertisement revenue for Google.
- The Commission also indicated certain measures to Google which could aid in modifying its conduct. These include:
- OEMs should not be forced to pre-install a bouquet of applications, and and shall not be restrained from deciding the placement of pre-installed apps, on their smart devices;
- Licensing of Play Store to OEMs shall not be linked with the requirement of pre-installing Google search services, Chrome, YouTube, Google Maps, Gmail or any other app;
- Google shall not offer any monetary or other incentives to OEMs for ensuring exclusivity for its search services;
- Google shall not incentivise or obligate OEMs for not selling smart devices based on Android forks.
- Google shall not restrict uninstalling of its pre-installed apps by the users;
- Google shall allow users, during the initial device setup, to choose their default search engine for all search entry points. Users should have the flexibility to easily set as well as easily change the default settings;
- Google shall allow developers of app stores to distribute their app stores through Play Store.
- On Friday the Supreme Court came down upon an environmentalist for filing a petition seeking his appointment as the President of India after removing current President Droupadi Murmu from the post.
- the bench asked, What kind of scurrilous petitions are these? How is this (filed under) Article 32.
- Please hear me for two minutes. Recent example of Sri Lanka where citizens entered President’s home, what is happening in Russia, I will work for whole world where things are messy. President’s role needs to be redefined.
- the Court ordered, The petition is frivolous and an abuse of the process of the Court, the allegations made are expunged from the record and Registry are requested not to entertain such pleas in the near future.
- On Thursday the Bombay High Court dismissed more than 100 petitions filed by developers and residential societies challenging levy of development charges by authorities collectively amounting to more than ₹800 crores. (Shivaji Nagar Rahivashi Co-op. Hsg. Soc. Ltd. & Ors. v. State of Maharashtra & Ors.)
- A bench of Justices RD Dhanuka and Kamal Khata found no merits in the petitions and dismissed the same in a detailed 238 page judgment.
- The petitioners were carrying out redevelopment of their respective buildings and claimed that such levy by planning authorities like Brihanmumbai Municipal Corporation (BMC) and Maharashtra Housing and Area Development Authority (MHADA) under Section 124F of the Maharashtra Regional Town Planning Act was illegal and without jurisdiction.
- The petitioners, therefore, sought an order setting aside the demand notices issued by the planning authorities imposing an amount collectively to the tune of over ₹800 crores on all petitioners.
- The Court deduced from the submissions that even if the lands may be owned by either the State or the planning authorities, upon redevelopment of these plots by the developer, the building would be owned by either the society or occupants for whose benefit these buildings would be developed.