Today’s Legal Updates

Friday, 23rd June 2023

Legal Awareness: – CONSTITUTION OF INDIA

Part – IXA THE MUNICIPALITIES

Article – 243ZF Continuance of existing laws and Municipalities.

Notwithstanding anything in this Part, any provision of any law relating to Municipalities in force in a State immediately before the commencement of the Constitution (Seventy-fourth Amendment) Act, 1992, which is inconsistent with the provisions of this Part, shall continue to be in force until amended or repealed by a competent Legislature or other competent authority or until the expiration of one year from such commencement, whichever is earlier:
Provided that all the Municipalities existing immediately before such commencement shall continue till the expiration of their duration, unless sooner dissolved by a resolution passed to that effect by the
Legislative Assembly of that State or, in the case of a State having a Legislative Council, by each House of the Legislature of that State.

Today’s Legal Updates: 

  1. On Friday the Bombay High Court expressed displeasure over the failure of the Central Bureau of Investigation (CBI) to give a clear answer to the Court’s queries on whether it would be arresting India Revenue Service (IRS) officer Sameer Wankhede in the bribery case lodged against him.
    • A division bench of Justices AS Gadkari and SG Dige was hearing a plea by the agency to vacate an interim protection order granted in Wankhede’s favour on 19th May 2023.
    • the CBI’s counsel to answer the Court’s queries on this aspect led the bench to orally remark, You are a prime investigating agency. Why are you playing hide and seek? Why are you shying away from saying whether you want to arrest him or not?
    • the Court said, You give notice that you will give 48 hours before arresting. We will relegate him to sessions court.
    • the Court said, You show us that the stage of arrest has reached from the documents. Let us see the facts.
    • the bench retorted, The insistence to not make a statement (that you don’t want to arrest him) is raising serious doubts. How do we know you are maintaining the diary properly? You have three days. It may be loosely maintained diary.
    • Wankhede was booked for offences under Sections 7 (bribery), 7A (undue advantage to influence public servant by illegal means) and 12 (abetment) of the Prevention of Corruption Act along with Sections 120B (criminal conspiracy) and 388 (extortion) of the Indian Penal Code.
  2. On Friday the Himachal Pradesh High Court observed while rejecting a man’s claim that his wife had deserted him, no wife can be forced to live in the matrimonial home when the husband is keeping another lady with him.  (Nain Sukh v Seema Devi)
    • Justice Satyen Vaidya, therefore, dismissed a husband’s plea for divorce on allegations of desertion and cruelty.
    • the Court said, Respondent (wife) had justifiable ground to live separately as no wife can be forced to live in matrimonial home with husband keeping another lady with him.
    • The Court proceeded to highlight that the Hindu Marriage and Divorce (Himachal Pradesh) Rules, 1982 specifically require the allegations of cruelty to be specified in the petition with sufficient particularity with time and place of the Act alleged and other facts relied upon.
    • the Court found that the issue of desertion was framed wrongly and the “pleading of necessary jurisdictional facts for the ground of desertion were clearly missing in the petition.”
  3. On Friday the Madras High Court held a housewife manages the house, sacrifices her own dreams to enable the husband to step out and earn, and contributes equally towards acquisition of family assets and is therefore, entitled to half the share in all the assets acquired by her husband in his own name.
    • Justice Krishnan Ramasamy held that while no legislation has been enacted so far in India to recognise the contributions made by a wife either directly or indirectly, the Court could very well recognise such contribution.
    • the High Court said, The contribution which wives make towards acquisition of the family assets by performing their domestic chores, thereby releasing their husbands for gainful  employment, would be a factor which, this Court would specifically take into account while deciding the right in the properties either the title stand in the name of the husband or wife and certainly, the spouse who looks after the home and cares for family for decades, entitled to a share in the property. If, on marriage, she gives up her paid work in order to devote herself to caring for her husband and children, it is an unwarrantable hardship when in consequence she finds herself in the end with nothing she can call her own.
    • the High Court said, In the present case, the properties purchased particularly, Item Nos.1 and 2  of the schedule mentioned properties are concerned, when the plaintiff (husband) was in abroad, he used to send monies from time to time to the 1st defendant/wife,who in turn, out of  the said monies, purchased the Item Nos.1 and 2. Though the properties were purchased  from and out of the monies sent by the plaintiff, it cannot be ignored that the  contributions made by the 1st defendant/wife as discussed above, without which, certainly, the plaintiff could not have saved money and acquired those said properties.  These are all the aspects, though proved by documentary evidence, Ex.A1 to Ex.A11 both the Courts below have not dealt with it in a proper perspective and erroneously  held that only the plaintiff has the absolute right over Item Nos.1 and 2 of the schedule mentioned properties.
  4. On Friday the Supreme Court partly stayed an Orissa High Court order that had invoked its parens patriae jurisdiction to restore the custody of a minor Muslim girl to her father in a habeas corpus case.
    • A top court vacation bench of Justices BV Nagarathna and Manoj Misra also sought the response of the Orissa government in the matter.
    • The parens patriae jurisdiction gives courts the power to act as the parent of any child, individual or animal in need of protection.
    • The High Court had on April 30 this year held that technical objections regarding territorial jurisdiction cannot be given much importance in such cases. It had observed that Article 226(2) of the Constitution enables it to issue writs to persons, authorities or governments located beyond its territorial limits, provided that at least a partial cause of action arises within its territorial jursidiction.
    • They stated that the custody battle arose after a property dispute broke out between the parties. Further, a similar plea by the mother was dismissed as withdrawn from the Patna High Court.
    • Even under Muslim Personal Law, the central idea for appointment of guardian or for deciding the issue of custody is to consider the welfare of the minor.
  5. On Friday the Calcutta High Court observed while upholding a three-year jail term handed down to a man (appellant) for pawing at a girl while she was walking outside with her mother, the benefit under the Probation of Offenders Act, 1958, cannot be availed by convicts under the Protection of Children from Sexual Offences Act, 2012, (POCSO Act).  (Prakash Shaw v. State of West Bengal)
    • Justice Siddhartha Roy Chowdhury upheld the conviction and sentence while relying on the testimony given by the victim girl.
    • the Court further held, There is nothing to impeach her credibility. When a ring of truth is found in what has been stated by the victim girl before the learned Trial Court, non-examination of the victim girl by police is of no consequence.
    • the High Court held, Probation of offenders Act, 1958, therefore cannot be made applicable in this case in derogation of such special enactment of 2012.
    • The police arrived soon after and a case was registered under Section 354A (sexual harassment) of the Indian Penal Code read with Section 8 (sexual assault) of the POCSO Act.
    • the Court said, in a case of Section 8 of POCSO Act examination of doctor is not at all required in the given facts and circumstances.
  6. On Friday the Calcutta High Court sought the response of the State Election Commission (SEC) to an allegation that 20,585 nominations by candidates who had sought to contest the upcoming West Bengal panchayat elections, were withdrawn abruptly over three days.  (Suvendhu Adhikari and anr v. Rajiv Sinha, State Election Commissioner)
    • The bench comprising Chief Justice TS Sivagnanam and Justice Uday Kumar was hearing a contempt application filed by leader of opposition and Bharatiya Janata Party (BJP) leader, Suvendhu Adhikari alleging willful delay on the SEC’s part in complying with various directions earlier issued by the High Court to ensure free and fair elections.
    • the Court’s order, Learned advocate appearing for the applicant submitted that an anomolous situation has arisen wherein large number of withdrawl of nominations have taken place and the astronomical figure is 20,585. The State Election Commission while filing their affidavit shall also address this aspect of the matter as in several cases, this has been raised by various petitions.
    • The SEC today maintained that there has been no wilful delay on its part to comply the Court’s earlier directions to requisition the deployment of central paramilitary forces. The Court was informed that the Central government has already sanctioned the deployment of 315 companies of central forces, which would be in addition to the 22 companies of such personnel already engaged.
    • The SEC added that it had immediately carried out these measures after the Supreme Court dismissed its appeal against the High Court’s directions on June 20. Hence, the SEC’s counsel submitted that there was no delay on the SEC’s part in implementing the Court’s directions.
    • The High Court was also told that 273 officers of the West Bengal services and 22 Indian Administrative Services (IAS) officers have been engaged as observers.
  7. On Friday the Karnataka High Court reserved its verdict in a petition seeking quashing of the criminal case registered against Congress leaders Rahul Gandhi, Jairam Ramesh and Supriya Shrinate in a copyright infringement case for the alleged unauthorised use of music from movie KGF Chapter 2 during the Bharat Jodo Yatra campaign. (Jairam Ramesh v State of Karnataka)
    • Justice M Nagaprasanna heard the parties’ arguments and reserved his orders while stating that the interim protection granted to Gandhi and others in December would continue till the case is disposed of.
    • Senior Advocate Vikram Huilgol, appearing for the Congress leaders, argued that for an offence to be made out under Section 63 of the Copyright Act, the accused must knowingly infringe a copyright.
    • it was submitted, There is no allegation that I have monetised.. Keeping in mind the object of the Copyright Act.. I have no monetary gain.
    • Senior Advocate S Sriranga, representing complainant MRT Music, argued Is gain only monetary? Through the entire process, they have gained popularity.
    • According to MRT Music’s complaint, the video for the Bharat Jodo Yatra was created for the purpose of mass circulation on social media platforms, and it used popular sound recordings owned and held by complainant.
    • The High Court had then set aside that order while also directing the Congress party to remove the offending content from its social media accounts on Twitter, Facebook, YouTube and Instagram.
  8. On Friday the Kerala High Court observed Privacy is the Constitutional core of human dignity while ordering the removal of images uploaded on online media platforms of a woman arraigned by the police as a victim in an immoral trafficking case.  (XXX v State of Kerala & Ors.)
    • Justice K Babu made the observation while considering a plea filed by a woman who claimed that her name, images, identity, and other details were uploaded and published on online media platforms, including YouTube, in connection with a case registered under the Immoral Traffic (Prevention) Act, 1956 (ITPA).
    • the order stated, Privacy is the ultimate expression of the sanctity of the individual. There cannot be dignity to an individual without privacy. It is a constitutional value founded on fundamental rights. Privacy with its attended values assures dignity to the individual. Dignity is the core which unites fundamental rights. Privacy is the constitutional core of human dignity.
    • The Court also noted the petitioner’s submission that such social media exposure affected her professional practice and her right to privacy.
  9. On Friday the Karnataka High Court agreed to hear a plea challenging the validity of a trial court order directing that a criminal case be filed against Karnataka minister B Nagendra in relation to illegal mines trading. (B Nagendra v State of Karnataka)
    • Single-Judge Justice M Nagaprasanna said that he will examine the issue of limitation first and sought the State government’s response on the petition.
    • the Court ordered, List this matter on 14 July. Special Court to defer hearing till then. Issue notice.
    • The petitioner argued that the offences alleged date back to the years 2009 and 2010, while the complaint was filed only in 2023. In this background, it was argued that the case was barred by limitation and the Court did not have jurisdiction to hear it.
  10. On Friday the Kerala High Court observed Installation of Artificial Intelligence cameras (AI cameras) on roads to detect violations of traffic rules, is an innovative step and it should not be discouraged over mere allegations of corruption or lack of transparency on the government’s part in installing such cameras. (Mohanan VV & Anr. v State of Kerala & Ors.)
    • Single-judge Justice PV Kunhikrishnan clarified that these allegations are matters that are to be dealt with separately but whatever other criticisms the new initiative may be facing, AI cameras are an innovative method to detect traffic violations.
    • the Court said, There may be objections regarding the transparency in the decision making by which the cameras and other equipment are purchased. It appears that, even allegations of corruption are raised. That is a different matter which is to be dealt separately. For that reason, an innovative venture initiated by the Motor Vehicle department may not be discouraged. Since it is introduced recently, there may be some technical defects and lapses. Of course, that is to be rectified. But in this new era of technology, installation of AI surveillance cameras is an innovative step to detect the violation of the road rule.
    • the Court observed, An innovative system is introduced in the State to detect the violation of the provisions of the Motor Vehicles Act and Rules by installing AI surveillance Cameras on the roads. We have to appreciate the government and its Motor Vehicle department for introducing the same. There is no criticism from any part against the installation of AI Cameras, even from opposition parties in the state. They also wholeheartedly accept the new venture.
    • the Court said, What a heart-breaking message.
    • the Court said, Wearing of helmet while riding a two wheeler is to protect the life of the citizen. Protection of the life of the citizen is the duty of the State. Therefore, there cannot be any exemption to the petitioners in wearing helmets, stating that they are suffering from some illness. There is no fundamental right to a citizen to use two wheelers without following the rules of the land.
    • the judgment, The petitioners can’t evade the AI Cameras by getting an exemption. Therefore, the prayers in this writ petition cannot be entertained.
  11. On Friday the Calcutta High Court directed the State Election Commission (SEC) to file a report on allegations that only candidates of the ruling Trinamool Congress party (TMC party) were able to file nominations to contest from 274 seats in the upcoming West Bengal panchayat elections.
    • The order was passed by a bench of Chief Justice TS Sivagnanam and Justice Ajay Kumar Gupta, after the Court was told that all the seats in a particular block (274 seats) were uncontested as none of the candidates from other parties could file nominations.
    • the Chief Justice orally observed, This seems to be very abnormal, 274 (seats going uncontested)… There are 10 gram panchayats, 30 samitis, 3 zilla parishads.
    • the Court’s order, We are examining a larger issue as to whether it is possible and feasible that 274 seats can remain uncontested and there is not even a single person who is desirous of filing his nomination for any one of the seats in the 10 gram panchayats, 30 panchayat samitis and 3 zilla parishads. Therefore, we direct the third respondent, the West Bengal State Election Commission to file a report on the issues highlighted in the writ petition and the Court will decide as to what further orders are required to be passed in this writ petition.
    • he argued, How is it possible milord? In a multiparty democratic system, that no one will come up to file their nominations? And how can I choose? I am losing my right – Constitutional right to choose a candidate, my representative. I am losing my right to vote … I have a right to choose.
    • This issue was also brought to the notice of single-judge, Justice Amrita Sinha yesterday, who had orally observed that “274 seats going uncontested cannot be accepted.
  12. On Friday the Kerala High Court sought the responses of the State government, Regional Transport Officer (RTO) and Transport Commissioner on a plea challenging two speeding challans issued to him almost six months after the incident.
    • The petitioner, one Anil Kumar R, received two e-challans via SMS on March 5, 2023 for speed violations on September 28, 2022 on the National Highway (NH) between Coimbatore and Ernakulam.
    • His writ petition claimed that the challans issued to him were coated with discrepancies that were in violation of Central Motor Vehicle Rules (CMVR) as according to the rules, a notice of offence must be issued within 15 days of its occurrence.
    • the RTO (Enforcement) admitted the delay in issuing notices due to software updates but shifted the responsibility for road safety markings and signages to National Highways Authority of India (NHAI).
  13. On Friday A plea before the Gauhati High Court challenging eviction proceedings initiated against people living in the Silsako wetland area has thrown up a question over whether a law recognising the area as a wetland can be applied retrospectively.  (Khireswari Saikia vs State of Assam and ors)
    • the bench of Chief Justice Sandeep Mehta and Justice Mitali Thakuria also issued notice to the Guwahati Metropolitan Development Authority.
    • The appellants before the Court have raised a grievance over the retrospective application of the Guwahati Waterbodies (Preservation and Conservation) Act, 2008.
    • Chief Justice Mehta had remarked, We cannot be swayed by this, where human beings and their greed for land just eats into the lakes, rivers, water bodies, right left and centre … Officers who connive with them – they should be hauled up for disciplinary proceedings. We are not going to come to the aid of these people, that is for sure. There is no dispute. You have rampantly finished off the lake … For a rank encroacher what kind of notice is required? Can there be any claim of right to encroach on a water body and can the encroacher ask that please give me notice first?
    • the Chief Justice added, We will not term them as settlers, sorry. It is a different matter that officials who had turned a blind eye should be prosecuted, no doubt about that. No human aspect when it comes to encroaching of water bodies, sir. Once it is a water body you have to move out, sir.
    • the appellant’s counsel submitted, Would not the rule of estoppel and doctrine of legitimate expectations apply when the State has recognised long physical possession on that land? In a Constitutional and welfare state, during a fight between the right to shelter and the conservation of national resources, the rights of those at the lowest strata have to be balanced when there are alternative policies available for rehabilitation and resettlement.
    • Chief Justice Mehta said, Is the right to life only of human beings and not other living beings (like lakes)? Can a letter by circle officer be attributed to the State, is that a recognition of right by the State, sir? When it is leading to virtual extinction of a water body, probably these technicalities will not come in the way, this is our prima facie view … lake is also a living body, has the right to survive.
    • he said, Very sorry state of affairs. The [Waterbodies] Act is not prospective, it [only] declares. I am at a loss for words. In any other State, the category of land is mentioned in the revenue record. There is no need for such Acts, even.
  14. A case involving allegations of attack on two lawyers inside the Antop Hill police station premises was transferred by the Bombay High Court from the Antop Hill police to the Assistant Commissioner of Police (ACP) of Matunga division.
    • The two lawyers had made serious allegations of assault and illegal detention by police officers at the Antop Hill police station.
    • The lawyers claimed that despite a written complaint against the errant officials, no first information report (FIR) was registered.
    • A division bench of Justices Revati Mohite Dere and Gauri Godse decided that the case ought to be transferred to another police station to ensure an impartial investigation.
    • the bench said, We do not want this police station to do anything further. Speak to the Antop Hill DCP. We want this to be transferred from Antop Hill police station to some other police station and some senior officer to supervise. We do not want them to be instructing you (public prosecutor) also.
    • the Court warned, It shouldn’t happen that some footage is deleted. Because it happens. We have seen from our experience. Some experts are appointed and footage is deleted.

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