Today’s Legal Updates

Tuesday, 23rd August 2022




Article – 86 Right of President to address and send messages to Houses.

  1. The President may address either House of Parliament or both Houses assembled together, and for that purpose require the attendance of members.
  2. The President may send messages to either House of Parliament, whether with respect to a Bill then pending in Parliament 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 Tuesday the Supreme Court said that the ratio of that verdict with regard to Section 8(4) of PMLA has left scope for arbitrary application in n what could be the first sign of judicial disagreement with the Supreme Court’s recent judgment upholding the validity of the Prevention of Money Laundering Act (PMLA).
    • the Court said, In Vijay Madanlal Choudary & Ors v. Union of India, SLP (Civ.) No. 4634 of 2014 and others, this Court dealt with confiscation proceedings under Section 8 of the Prevention of Money Laundering Act, 2002 (“PMLA”) and limited the application of Section 8(4) of PMLA concerning interim possession by authority before conclusion of final trial to exceptional cases. The Court distinguished the earlier cases in view of the unique scheme under the impugned legislation therein. Having perused the said judgment, we are of the opinion that the aforesaid ratio requires further expounding in an appropriate case, without which, much scope is left for arbitrary application.
    • Section 8(4) states: “Where the provisional order of attachment made under sub-section (1) of section 5 has been confirmed under sub-section (3), the Director or any other officer authorised by him in this behalf shall forthwith take the possession of the attached property.”
    • the Court had said in the judgment, Merely because the provisional attachment order passed under Section 5(1) is confirmed, it does not follow that the property stands confiscated; and until an order of confiscation is formally passed, there is no reason to hasten the process of taking possession of such property.
    • the judgment had said, That is certainly avoidable unless it is absolutely necessary in the peculiar facts of a particular case so as to invoke the option available under sub-section (4) of Section 8.
  2. The Central government has opposed the proposal to live-stream the proceedings before the Delhi High Court in the petitions seeking recognition of same-sex marriages.
    • the affidavit said, It is well known that Judges cannot really defend themselves in public fora and their views/ opinions are expressed in the judicial pronouncements.
    • the government submitted, To maintain the solemnity, dignity and seriousness of court proceedings, particularly in matters such as the present one wherein sharp ideological schism may be present it may be advisable that the proceedings not be telecast live.
    • the Central government contended, To maintain the solemnity, dignity and seriousness of court proceedings, particularly in matters such as the present one wherein sharp ideological schism may be present it may be advisable that the proceedings not be telecast live.
  3. On Tuesday the Kerala High Court held that copies of ‘A’ diary of civil and criminal postings of cases relates to judicial proceedings and an application for the same cannot be entertained under the RTI Act. (MP Chothy v Registrar General & Ors.)
    • the judgment said, These provisions regarding application for copies under the Rules of Practice in the Subordinate Courts are almost in pari materia with Rule 128 and 129 of the Rules of the High Court of Kerala, 1971 framed under Article 225 of the Constitution of India. The copies of ”A’ diary of civil and criminal postings of the cases’ can be obtained by the petitioner on filing applications under the relevant Rules of Practice.
    • The Apex Court in the Chief Information Commissioner v. High Court of Gujarat and another has held that when the information can be obtained through the mechanism provided under the rules made by the High Court, the said mechanism should be preserved and followed and the provisions of the RTI Act shall not be resorted to. Since the copies of ”A’ diary of civil and criminal postings of the cases’ can be obtained by the petitioner on filing applications under the Rules of Practice, the provisions of the RTI Act shall not be resorted.
  4. On Tuesday the Chief Justice of India (CJI) NV Ramana highlighted the importance of bringing in a law to address the issue of fraudulent healthcare services that patients fall prey to.
    • The CJI was speaking at the inaugural National Academy of Medical Sciences’ (NAMS, Delhi) public oration on ‘Law and Medicine’.
    • Quackery begins where awareness ends. Where there is room for myths, there is room for quackery. Quackery is the biggest disease affecting India. Owing to the financial and time constraints, a huge majority of Indian population approaches these untrained and uncertified doctors. Lack of awareness and knowledge, misplaced belief, and sheer inaccessibility has massive ramifications on the health of the country, particularly the rural and under-privileged India. Need of the hour is to bring in a legislation to save people from falling prey to fraudulent practices in the name of treatment.
    • Doctors express this scientific understanding day in and day out through their medical practice. There are very few professions that exist in a constant state of flux in the way the medical profession does. In fact, the medical profession is most reflective of technological and the scientific developments. It is sensitive to every advancement in technology and is constantly striving to improve the care and services it offers.
    • Our courts also have played significant role in realizing these goals and shaping the health care policies of our country. The Directive Principles have placed emphasis on the minutest details of health, nutrition, working conditions and welfare. In addition to the Directive Principles, the Constitution, in 11th and 12th schedules, places an obligation to provide safe drinking water, sanitation and adequate healthcare upon the local bodies.
    • A good lawyer, like a good doctor, must always work earnestly towards imbibing and accumulating greater knowledge. The possibilities for growth in both fields are seemingly endless. Both medicine and law are the oldest professions in the world. They arise from basic necessities of dignified human existence. People place their faith in lawyers and doctors alike, trusting that they will act in best interests of those who approach them.
    • Private hospitals are being opened at an exponential rate. This is not necessarily a bad thing, but there is a glaring need for balance. We are seeing hospitals being run like companies, where profit making is more important than service to society. Due to this, hospitals and doctors alike are desensitized towards the plight of patients. They are just numbers for them. This trend has also spread monopoly and is deepening the inequities in access to health care.
    • Exorbitant medical fees coupled with excessive barriers has made it almost impossible for the poor to get decent healthcare. It is primarily the cost of healthcare that is forcing people to suppress their healthcare needs and well-being. The heart-breaking fact is that the crucial preventive stage is often lost when people suppress their health needs. They only approach the doctors when it is unmanageable and has crossed a certain threshold.
    • During the pandemic I saw various instances where doctors had been threatened, abused, attacked, and shunned. Despite this, they continued working on the front lines. This negative response towards doctors is truly unfortunate. Several false cases are being lodged against upright and hardworking doctors. They need a better, and more secure, working environment. We must foster an environment where more young people want to become doctors to serve Indian society.
    • CJI Ramana said such developments are leading to a massive brain drain, and to prevent this, doctors must be incentivised to remain in India.
    • the government must look out for the welfare of its doctors and improve their working conditions. The government must think of stronger incentives to make doctors accessible to rural population.
  5. On Tuesday A local court in Assam’s Guwahati has summoned Delhi Deputy Chief Minister Manish Sisodia in a defamation suit filed by the Chief Minister of Assam Himanta Biswa Sarma.
    • judge observed, Prima face it is seen that some derogatory remarks are made by the accused person against the complainant which if not true can malign the reputation of the complainant.
  6. On Tuesday the Supreme Court took an unfavourable view of the comments made by the Dravida Munnetra Kazhagam (DMK) party representative on television debates regarding the top court hearing the case on freebies promised by political parties before elections.
    • the CJI remarked, Mr Wilson, The party you represent (DMK) … I have a lot of things to say. Don’t think you are the only wise party appearing. Don’t think we are ignoring all that is being said just because we are not saying anything.
    • Senior Advocate Gopal Sankaranarayanan said, Yes the statements made by the Finance Minister of Tamil Nadu on TV against Supreme Court were not correct.
    • Palanivel Thiagarajan had said, What is happening in Supreme Court is a farce. I don’t understand what new constitutional amendment has been perceived by the supreme court where they think it is their business to decide how elected officials should spend money for the people.
    • the CJI said, Cows and goats in a rural area are a source of livelihood and this cannot be seen in such a water compartment way. Some are given bicycles as women are able to get to educational institutions or pursue business. We have to see what is freebie and what is welfare. For a rural poverty stricken person, for them such kits are important and it cannot be debated here in this room. Much has to be learnt from their knowledge and wisdom of such people.
    • the AAP said, If the idea is resource conservation within the nation, then the beginning point of that should not be the deserving masses who are constitutionally entitled to support in attaining a dignified standard of living.
  7. On Tuesday the Supreme Court struck down various provisions of the Benami Transactions (Prohibition) Act of 1988 and the 2016 amendments to the Act as unconstitutional.
    • The Court also held that the in rem forfeiture provision under Section 5 of the unamended Act of 1988, prior to the 2016 Amendment Act, is unconstitutional for being manifestly arbitrary.
    • The bench also held that Section 3(2) of the unamended 1988 Act is unconstitutional for being manifestly arbitrary.
    • Section 3(2) of the 2016 Act was also held to be unconstitutional for being violative of Article 20(1) of the Constitution.
    • Section 3(2) criminalises benami transactions making it punishable with imprisonment upto 3 years.
    • the Court said, Such an overbroad provision was manifestly arbitrary as the open texture of the law did not have sufficient safeguards to be proportionate.
  8. On Tuesday A petition has been filed before the Supreme Court challenging the decision of the Gujarat government to grant remission to 11 convicts who had gangraped Bilkis Bano and murdered her family members during the 2002 Godhra riots.
    • The petition was mentioned before a bench of Chief Justice of India (CJI) NV Ramana, Justices Hima Kohli and CT Ravikumar by Senior Advocate Kapil Sibal and Advocate Aparna Bhat with a request to hear the case tomorrow.
  9. On Tuesday the Karnataka High Court order abolishing the Anti-Corruption Bureau (ACB) established in 2016 has been challenged before the Supreme Court by a private complainant.
    • the plea before Supreme Court said, The impugned judgment insofar as it orders abolition of AC and transfer of cases to the Lok Ayukta at this stage would as a premium to accused persons since the investigation and effect of various criminal matters under the Prevention of Corruption Act, 1988, and other cases would stand jeopardised.
    • the judgment said, The very constitution of ACB by the government is to shield the corrupt politicians, ministers, and the officers from the watchful eyes of the Lokayukta and that Government is weakening the institution of Lokayukta to protect these persons from prosecution, inter alia under the provisions of the PC Act.
    • Justice Sandesh had orally remarked, Your ADGP so powerful (unclear). Some persons spoke to one of our High Court judges. That judge came and sat with me and he said giving an example of transferring of one of the judge to some other district. I will not hesitate to mention the name of the judge also! He came and sat by the side of me and there is a threat to this court.
  10. On Tuesday the Supreme Court accepted the Enforcement Directorate’s proposal to shift alleged conman Sukesh Chandrashekhar and his wife to Mandoli jail from Tihar jail where he is presently lodged.  (Sukash Chandra Shekhar @ Sukesh & Anr vs Union of India & Anr)
    • the Court said, Having considered these material on record, this Court is of the opinion that in terms of the Statement by the ED, petitioner be shifted to Mandoli jail.
    • the Bench said, What is your right? Where is your perceptible threat? If we are to accede your client’s request like this, we’ll have to entertain such petitions from all & sundry.
  11. On Tuesday the Supreme Court questioned Baba Ramdev on his attempt to discredit allopathy and its practicing doctors during the COVID-19 pandemic.
    • Why is Baba Ramdev accusing doctors allopathy etc? He popularised yoga. Good. But he should not criticize other systems. What is the guarantee that what he follows will cure everything?…Why is Baba Ramdev abusing the system like this?
    • The kind of disparaging statements made and the public is being misguided. We made representations, and no answer. Government also knows about such misleading ads by Ayush companies etc…They say that doctors were taking allopathy, but still succumbing during the COVID wave. If this happens unbated, then it will cause serious prejudice to us.
  12. On Tuesday the Delhi High Court has held that according to Muslim law, a minor girl who has attained puberty can marry without the consent of her parents and has the right to reside with her husband.  (Fija and Anr v State Govt of NCT of Delhi and Ors)
    • the judge said, If the petitioners are separated, it will only cause more trauma to the petitioner no.1 (girl) and her unborn child. The aim of the state here is to protect the best interest of Petitioner no.1. If the petitioner has wilfully consented to the marriage and is happy, the state is no one to enter private space of the petitioner and separate the couple. The doing of the same will tantamount to encroachment of personal space by the state.
    • the Court said, On the other hand, in the present case, it is not a case of exploitation but a case where the petitioners were in love, got married according to the Muslim laws, and thereafter, had physical relationship.
    • It is also clear from the status report that the parties were living with each other husband and wife. There is no averment that they had sexual intercourse prior to their marriage. In fact, the status report is suggestive of the fact that they were married on 11.03.2022, and thereafter, established physical relationship.
  13. On Tuesday the Supreme Court referred issues arising out of a batch of petitions related to the Maharashtra political crisis to a five-judge Constitution Bench.
    • the top court ordered, List the matter before the Constitution Bench day after tomorrow and the Bench will decide about the symbol-related Election Commission proceeding at the beginning.
    • CJI Ramana said, It is important to highlight on power of deputy speaker to initiate disqualification proceeding when such proceeding has been initiated against him. Here Nabam Rabia judgment needs gap filling. What is impact of removal of para 3 of the Tenth Schedule? What is the scope of interplay with Tenth Schedule? What is the scope of powers of Speaker? What is the scope of power of ECI when there is rift in party? All these questions to be decided by the larger bench.
  14. On Monday the Delhi High Court issued notice to Central government on a plea by a 97-year-old man challenging the constitutional validity of Section 23 (1) of the Maintenance and Welfare of Parents and Senior Citizens Act, 2007.
    • the plea argued, the obligation on the persons inheriting the property of their aged relatives to maintain such aged relatives is confined only in respect of transfers effected after the commencement of the Act and thus affords the benefit to the senior citizens who transfer the property after the commencement of the Act, whereas similarly situated senior citizens who had effected transfer of their property to their wards (with identical conditions of maintenance) and who have been deserted by the transferees, are denied this valuable benefit of having the transfer declared as void.
  15. On Tuesday the Bombay High Court sought the response of the Maharashtra government on a plea by Bollywood actor Aditya Pancholi seeking quashing of the rape case registered against him in 2019 based on the complaint of a top actress.
    • A bench of Justices Nitin Jamdar and NR Borkar issued notice to the State and the complainant asked the prosecution to inform the Court about the progress of the investigation and trial arising out of the case.
  16. On Monday Chief Justice of India (CJI) NV Ramana bemoaned the dwindling number of lawyers in the parliament.
    • On every possible occasion I keep mentioning about the great contribution made by our legal community in our freedom struggle and in framing of the Constitution. In the constituent assembly and in the early days of our parliament, the house was dominated by legal professionals. As a result, we got outstanding Constitution and flawless laws. Nowadays the number of lawyers has dwindled and that space is taken by others. I do not want to comment any further.
    • He used to walk six kilometers from his village to attend his school. All through, he maintained live contact with his roots. Simplicity and hard work, which are synonymous with rural life, are his constant companions. It is on the strength of our democracy that Shri Dhankhar ji could reach the second highest office in the country, in spite of hailing from rural background and without political father or Godfather. His elevation is a tribute to our healthy democratic traditions and rich constitutional values.
    • the CJI said, During his tenure, Shri Dhankhar will have the unique and challenging opportunity to ensure smooth functioning of the Rajya Sabha as its ex-officio Chairman. This calls for harmonizing the interests of all sides of the House. I know, it is not easy to satisfy each Hon’ble Member of the House. But, I am confident that with his rich court craft and exposure in diverse fields, Shri Dhankhar ji will definitely manage to take along all sections of the House.
  17. On Tuesday the Kerala government has moved the Kerala High Court challenging the controversial order of the Kozhikode Session Court which had, while granting anticipatory bail to activist Civic Chandran, held that sexual harassment case would not prima facie stand if the victim was wearing a “sexually provocative dress.”  (State of Kerala v Civic Chandran)
    • the Court had said, In order to attract this Section, there must be a physical contact and advances involving unwelcome and explicit sexual overtures. There must be a demand or request for sexual favours. There must be sexually colored remarks. The photographs produced along with the bail application by the accused would reveal that defacto complainant herself is exposing to dresses which are having some sexual provocative one (sic). So Section 354A will not prima facie stand against the accused.
    • the appeal stated, The court below relied heavily on certain photographs of the victim which was published in social media and observed that the defacto complainant herself is exposing to dresses which are having some sexual provocative and therefore Section 354A will not prima facie stand against the accused. The above finding is per se illegal, unjust and have the effect of potentially exposing the survivor to secondary trauma.
  18. Judges retiring from the Supreme Court of India will be entitled to rent free Type-VIl accommodation at Delhi (other than the designated official residence) for a period of six months from the date of retirement.
    • Provided further that the following staff shall be deployed with a retired Chief Justice and a retired Judge of Supreme Court for a period of one year from the date of retirement from the establishment of Supreme Court or a High Court with full pay and allowances admissible to regular employees of Supreme Court-
      1. chauffeur (equivalent to the level of Chauffer in the Supreme Court).
      2. secretarial assistant (equivalent to the level of the Branch Officer in the Supreme Court).
    • Provided that a retired Chief Justice shall be entitled to a rent free Type-VIl accommodation at Delhi (other than the designated official residence) for a period of six month from the date of retirement.
  19. On Tuesday the Lucknow Bench of the Allahabad High Court has been granted bail Mohammad Alam, one of the accused booked under the Unlawful Activities Prevention Act (UAPA) while on his way to Hathras along with journalist Siddique Kappan. (Alam @ Mohammad Alam v State of UP)
    • the Court said, On the basis of material available on record upto this stage, there appears no reasonable ground for believing that the accusation against the appellant are prima facie, true.
    • the Court noted, He (Kappan) is a press reporter and laptop and mobile phone recovered from his possession, incriminating articles and video clips etc. were found inter-alia. Admittedly, no such incriminating material was recovered from the possession of the present accused-appellant (Alam).
  20. On Tuesday the Bombay High Court pulled up the Brihanmumbai Municipal Corporation (BMC) for allowing Union Minister Narayan Rane to file a second regularisation application with respect to his Juhu bungalow despite his first application being rejected by the municipal body.
    • the Bench demanded, Does the order passed by this Court have no sanctity? This will be never ending. Once an order has been passed by this court, again you take a different stand. Is BMC above the court?
    • the Bench said, Where is the opposition by the public body? We will take up the task to decide whether a civic body can allow unauthorised construction. Closed for orders.
    • the Court asked the counsel, What is the purpose of regularisation? If a construction is permissible for 50 floors and you use some portion of FSI and thereafter the construction ends up to be beyond the FSI then will that be regularised?
    • the Bench said, This is the purpose of regularisation? That you take FSI from here and there and then regularise illegal structures? If corporation is able to regularise everything, then large scale illegalities will be permissible. What is the extent beyond which a case can fall outside gross irregularity?
  21. On Tuesday the Karnataka High Court dismissed a petition filed by Intel Corporation challenging a 2019 order of the Competition Commission of India (CCI) calling for an investigation into allegations of abuse of dominant position in the market for micro-processors. (Intel Technology India Pvt Ltd & another v CCI & another)
    • the CCI had recorded in its order, The Commission is of the prima facie opinion that the new differentiated India specific warranty policy of Intel in regard to its Boxed Micro-Processors is in contravention of Section 4 (2) (a) (i) of the Act.
  22. On Tuesday the Delhi High Court directed the authorities to file a detailed report explaining the steps taken to rehabilitate children who are found begging on the streets of the capital.  (Ajay Gautam v Delhi Commission for Protection of Child Rights and Ors)
    • For the last two months I have been observing the same thing. I have been driving my car personally and I could see the same children begging at the same traffic signal. We have to relocate them, send them to school and provide proper food.
  23. On Tuesday the Madras High Court directed the State government and police machinery to completely eradicate the practice of the orderly system within four months.  (U Manickavel v State)
    • the Court observed in its order, The Constitutional Courts as the protector of the Constitution, is expected to raise voice for such voiceless police personnel made to perform household works in the residence of the higher officials.
    • The concept is opposed to public policy and directly in violation of Article 21 of the Constitution of India, as it affects the dignity of the trained uniformed police personnel, whose public duty is to maintain the Law and Order and guard our great Nation.
  24. On Tuesday the Nagpur Bench of the Bombay High Court issued notice to the Maharashtra government in a suo motu Public Interest Litigation (PIL) concerning the lack of basic facilities like health infrastructure, medicines and education in the tribal villages of Gadchiroli district, which get cut-off from surrounding areas every monsoon.  (Court on its own motion vs. Union of India)
    • Denial of the aforestated facilities to the villagers for almost half of the year leads to serious violation of fundamental rights of the villagers who are all tribal. We, therefore, take cognizance of this petition and direct that an experienced advocate be appointed to assist the Court.
    • the Court observed, Issues like non-availability of electricity, non-availability of water, non-availability of essential medical services, non availability of educational facilities and so on take serious turn during the period of five months and all these facilities are almost non-existent for the tribal villagers.
    • The letter petition made the following prayers:
      • Roads and bridges should be built on the Kannamwar Reservoir.
      • Special Healthcare Centres should be created by the State at Vengnur, Surgaon, Adengepalli and Padkotola.
      • Financial assistance to afflicted patients must be provided.
      • Necessary measures to prevent power outage in rainy season must be undertaken.
      • Provision of a doctor should be made till the construction of the Special Healthcare Centres is completed.
      • Provision of well-equipped boats with all safety equipment should be made to all villages until the construction of the bridge.
      • A survey should be conducted to find out data on all women who have suffered due to lack of connectivity during their pregnancy in order to grant them compensation.
      • Provision of ration with additional and necessary supplies like cooking oil, sufficient for a period of 6 months should be made to the villagers before monsoon.
  25. On Tuesday the Supreme Court has reaffirmed a person who avails any banking service falls within the scope of the definition of ‘consumer’ under the Consumer Protection Act, and can take recourse to legal remedies provided in the Act. (Arun Bhatiya vs HDFC Bank and ors)
    • the Court said, The respondent-bank does not dispute that the appellant, along with his father, opened a joint FD with the bank. A person who avails of any service from a bank will fall under the purview of the definition of a ‘consumer’ under the 1986 Act. As a consequence, it would be open to such a consumer to seek recourse to the remedies provided under the 1986 Act.
    • the Court held, There was a manifest error on the part of the SCDRC in declining to entertain the consumer complaint on merits. Whether the appellant is able to establish his case is a matter which has to be decided within the parameters of law as it emerges from the provisions of the 1986 Act. The essence of the complaint of the appellant is that there was a deficiency on the part of the respondent bank in proceeding to credit the proceeds of a joint FD exclusively to the account of his father. The SCDRC ought to have determined whether the complaint related to deficiency of service as defined under the 1986 Act.
  26. On Tuesday the Bombay High Court was informed that 8 out of 48 structures violating height restriction norms around the Chhatrapati Shivaji Maharaj Airport, will be demolished within a month.
    • the Mumbai Suburban District Collector stated that 8 structures have been identified for removal and the same has been conveyed to the Deputy Collector (Encroachment Removal).
    • the affidavit, This office is facing difficulty to remove the structure as name, address and other details of the person against whom proceeding under Rule 6 is carried out is not available with the DGCA and MIAL. …It is difficult to ascertain the exact nature and extent of the structure to cause its removal and to take action under Rule 8 of the Aircraft Rules, 1994 (demolition of illegal structures).

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