Today’s Legal Updates

Wednesday, 23rd March 2022

Legal Awareness :- CONSTITUTION OF INDIA

Part – XII FINANCE, PROPERTY, CONTRACTS AND SUITS

CHAPTER – I FINANCE

Distribution of Revenues between the Union and the States

Article – 269 Taxes levied and collected by the Union but assigned to the States

(1) Taxes on the sale or purchase of goods and taxes on the consignment of goods shall be levied and collected by the Government of India but shall be assigned and shall be deemed to have been assigned to the States on or after the 1st day of April, 1996 in the manner provided in clause (2).
Explanation.—For the purposes of this clause,—
(a) the expression “taxes on the sale or purchase of goods” shall mean taxes on sale or purchase of goods other than newspapers, where such sale or purchase takes place in the course of inter-State trade or commerce;
(b) the expression “taxes on the consignment of goods” shall mean taxes on the consignment of goods (whether the consignment is to the person making it or to any other person), where such consignment takes place in the course of inter-State trade or commerce.

(2) The net proceeds in any financial year of any such tax, except in so far as those proceeds represent proceeds attributable to Union territories, shall not form part of the Consolidated Fund of India, but shall be assigned to the States within which that tax is leviable in that year, and shall be distributed among those States in accordance with such principles of distribution as may be formulated by Parliament by law.
(3) Parliament may by law formulate principles for determining when a [sale or purchase of, or consignment of, goods] takes place in the course of inter-State trade or commerce.

Parliament Session

On 22nd & 23rd March 2022, during the ongoing Budget Session of Parliament, questions ranging from COVID-19 fourth wave predictions to a drop in media freedom rankings were answered.

World Press Freedom Index

Q. NCP Member of Parliament from Lakshadweep Mohammed Faizal asked if the government was aware of India dropping in the rankings of the World Press Freedom Index.

A. Union Minister for Information and Broadcasting Anurag Thakur in his reply in the Lok Sabha stated, “The World Press Freedom Index is published by a foreign Non-Government-Organization, “Reporters Without Borders”. The Government does not subscribe to its views and country rankings and does not agree to the conclusions drawn by this organisation for various reasons including very low sample size, little or no weightage to fundamentals of democracy, adoption of a methodology which is questionable and non-transparent, lack of clear definition of press freedom etc.”

NIA conviction rate

Q. A question by Jharkhand BJP Member of Parliament Sunil Kumar Singh on the National Investigation Agency (NIA)

A. Union Home Minister of State Nityanand Rai in the Lok Sabha replied, “Since its inception, the National Investigation Agency (NIA) has registered 103 cases of terror financing, in which 786 accused have been arrested. Charge-sheets have been filed in 92 cases against 865 accused persons. Conviction have been secured in 16 cases, whereby 97 accused persons have been convicted. The conviction rate in terror financing cases investigated by the NIA is 94.11%.”

Fourth wave of COVID-19

Q. BJP Member of Parliament from Uttar Pradesh Brijlal asked a question in the Rajya Sabha about the steps to be taken in view of an IIT-Kanpur study predicting a fourth wave of the pandemic.

A. Union Minister of State for Health & Family Welfare Dr Bharati Pawar stated that the Institute clarified that it has not forecast the fourth wave, but prepared a mathematical model predicting the possibility of the same, which is at the pre-print stage without peer review.

“Modelling studies are based on certain set of inputs either based on real world scenarios, or approximations of those inputs that are not available (which may vary in accuracy according to the technique used). Often these studies involve, taking a relatively small actual sample and extrapolate the result to the entire population. While this may achieve near accurate results for a small homogenous country/region, such techniques have failed repeatedly to give reliable results for a large, diverse population,”

Foreigners’ Tribunals

Q. A question by Sushmita Dev, Rajya Sabha Member of Parliament of the Trinamool Congress from West Bengal.

A. the Union Home Ministry replied that 100 foreigners’ tribunals are currently functional in Assam, The total number of cases currently pending in these as on December 31, 2021 was 1,23,829, the reply revealed, adding that the total number of cases referred to the Foreigners Tribunals was 4,35,282, out of which 3,09,048 were disposed of.

Cases disposed of by Foreigners Tribunals in Assam
Persons acquitted by Foreigners Tribunals in Assam

Wilful defaulters

Q. Dr Santanu Sen, Trinamool Congress Member of Parliament asked a question on detection of wilful defaulters.

A. Union Minister of State for Finance Dr Bhagwat Karad in reply shared the data of such persons with respect to public and private sector banks.

wilful defaulters cases

Today Legal Updates :-

  1. Today the Supreme Court held that lottery is a form of gambling and State legislatures are entitled to enact laws to levy tax under Entry 62 of List II of the Constitution (State List) on lotteries organised by Government of India or State governments. (State of Karnataka and ors v. State of Meghalaya and ors)
    • lotteries is a species of gambling activity and hence lotteries are within the ambit of ‘betting and gambling’ as appearing in Entry 34 List II.
    • the fact that lotteries are placed in Entry 40 of List I (Union List) of the Constitution will not disentitle States from taxing the same as per Entry 62 of List II.
    • “The scope and ambit of lotteries organised by Government of India or Government of State under Entry 40 of List I is only in the realm of regulation of such lotteries. The said Entry does not take within its contours the power to impose taxation on lotteries conducted by the Government of India or the Government of State,”
    • “Since there is no dispute that lotteries, irrespective of whether it is conducted or it is organised by the Government of India or the Government of State or is authorized by the State or is conducted by an agency or instrumentality of State Government or a Central Government or any private player is ‘betting or gambling’ the State Legislatures have the power to tax lotteries under Entry 62 of List II,”
    • “When a specific entry regarding taxation is provided in List II empowering the State Legislature to levy tax on a subject, namely, ‘betting and gambling’ amongst other similar activities, the same cannot be read by implication in an entry of List I namely Entry 40 of List I. This is because a taxation entry is separate and distinct from an entry dealing on a particular subject,”
    • “The object and purpose of Entry 62 of List II is to tax the activity of ‘betting and gambling’, whether it is conducted by a private entity or a State authorised entity or an instrumentality or agency or for that matter by the Government of India or the Government of any State,”
    • The Supreme Court framed the following issues:-
      • Whether lotteries can be classified under the subject matter of ‘betting an gambling.
      • Whether a State government can levy taxes on lotteries conducted by the Union or any other state government or a private party.
      • Whether the legislations enacted by the governments of Karnataka and Kerala are constitutionally valid or not.
    • Interpretation of Lottery in “Betting and Gambling”
      • “That the species of ‘lottery’ may be placed in the genus of ‘betting and gambling’ and more specifically under the ambit of ‘gambling’ because of the ‘gambling spirit’ which is a necessary element of ‘lottery’. The expression ‘to take a chance’ is itself synonymous to a gamble. Therefore, it may be concluded that lottery is one such activity which requires a participant to take a chance or to gamble,”
    • The Court further observed that, “110. It is also settled that the sale of a lottery ticket involves two elements, namely, (i) the right to participate in a draw; and (ii) the right to win the prize, dependent on chance. Therefore, sale of a lottery ticket is in the nature of a transfer of an actionable claim or a chose in action.”
    • Whether a State Government can levy taxes on lotteries conducted by Union or any other State Government?
      • Thus, organisation and conducting of lottery can be a pan India activity of gambling and when a particular State permits a lottery scheme conducted by the Government of India or the Government of any State in that State, a tax is leviable on the same, which is a tax on gambling. Thus Entry 62 of List II empowers the State Legislatures to impose tax on ‘gambling’ irrespective of who or which entity is conducting it including the Government of India or Government of any State,”
      • “Entry 40 of List I is meant only for the regulation of lotteries organised by the Government of India or the Government of a State. The said Entry cannot be expanded to cover the power to levy taxes on lotteries by the Parliament when as such a power is envisaged in Entry 62 of List II,” 
    • Whether the statues enacted by the States of Karnataka and Kerala levying taxes on lotteries are valid and constitutional?
      • “Exclusion of a legislative field from a term appearing in a general Entry, does not necessarily mean that such field ought to be excluded from the taxation Entry. This means that the term ‘betting and gambling’ in Entry 62 of List II is being construed in the same way as in Entry 34 of List II. The expression is accorded the same meaning and interpretation in both the Entries, i.e., that gambling includes lotteries,” 
  2. Today Former Chief Justice of India (CJI) RC Lahoti passed away, He was 81, He served as CJI from June 2004 to October 2005.
  3. Today thwe Bombay High Court judge, Justice Shahrukh J Kathawalla bid farewell as he demitted office after spending a decade on the Bench.
    • Justice Kathawalla was assigned civil matters, primarily suit and company related cases.
    • Justice Kathawalla was known for his industrious nature often sitting to hear cases well past the court hours.
    • One such noteworthy instance was when he sat till 3.30 am and heard over 100 cases in one sitting.
    • This earned him the sobriquet of “workaholic judge” and the “judge who burnt the mid-night oil”.
    • In fact on the last day as a high court judge, noting that no guidelines had been issued by the State, he directed an interim compensation of ₹10 crores be paid to fishermen community whose livelihood were affected due to an ongoing infrastructure project.
    • President of the Bombay Bar Association, advocate Nitin Thakker told, “He showed a very keen sense and desire to do justice in the matter. He was perceived as a relief giving judge. He gathered blessings of so many elderly parents who were victims of their ungrateful progeny, he also got grateful thanks from various tenants of rehab buildings who were deprived of property and rent by unscrupulous builders and developers for years,”
    • advocate Vishal Kanade, Secretary of the Bombay Bar Association recounted, “I can recount numerous occasions when our chest could swell with pride in his court when wrong doers were punished and dignity of righteous litigants was upheld. As juniors, we learnt what was expected from us as counsel, we got chastised for our mistakes and quite deservingly so,”
  4. Today the Karnataka High Court issued notice to the State government on a public interest litigation (PIL) petition seeking separate hostels and accommodation for transgender students in higher educational institutions in the State.  (Dr. Trinetra Haldar Gummaraju v. State Government of Karnataka and Ors)
  5. Today A special court hearing Central Bureau of Investigation (CBI) cases has sought the response of Taloja prison superintendent on DHFL promoter Dheeraj Wadhawan’s admission to a private hospital for 15 months without the court’s permission.
    • Judge Wadgaonkar said, “Considering this aspect, it is necessary to call for an explanation from superintendent of Taloja jail, on how he shifted the accused to a private hospital without permission of this court, when this court has first remanded accused in its custody. Further call explanation from head of department/superintendent of Kokilaben Dhirubhai Ambani Hospital (on) what medical ailments are suffered by Dheeraj Wadhawan that needs hospitalisation for long period and whether his further admission is necessary… and if yes, then can the same be (done) by (shifting) accused to J J hospital in Mumbai,” 
  6. Today the Karnataka High Court set aside a decree of divorce granted by a family court to a husband who claimed that his wife’s actions of demanding a separate house and staying with her parents and sister amounted to cruelty.  (S Shyamala@Kathyayani v. BN Mallikarjunaiah)
    • “Merely for the reason that the wife was demanding a separate house and that she was in the habit of leaving the matrimonial house and going to her sister’s and parents’ house, the same cannot be termed as “cruelty” for the purpose of seeking a decree of divorce.”
    • “For the purpose of Section 13(1)(ia) of the Act, “cruelty” could be wilful and unjustifiable conduct of such character as to cause danger to life, limb or health, bodily or mental, or as to give rise to a reasonable apprehension of such a danger. The question of mental cruelty has to be considered in the light of the norms of marital ties of the particular society, to which the parties belong, their social values, status, environment in which they live. Cruelty need not be physical. If from the conduct of the spouse it is established or an inference can be legitimately drawn that the treatment of the spouse is such that it causes apprehension in the mind of the other spouse, about his or her mental welfare then this conduct amounts to cruelty.”
    •  the wife lodged a criminal complaint against him and his relatives for offences punishable under Sections 498A (husband or relative of husband of a woman subjecting her to cruelty) 323 (voluntarily causing hurt) 504 (intentional insult with intent to provoke breach of the peace) 506 (criminal intimidation) read with Section 34 of the Indian Penal Code and Sections 3 (giving or taking dowry) and 4 (demanding dowry) of the Dowry Prohibition Act, 1961.
    • The appellant wife denied the allegations and submitted that her husband used to ill-treat her and assault her for having not brought sufficient dowry. She also contended that in 2007, her husband demanded ₹2 lakh from her, and when she pleaded her inability to give the same, her husband and his relatives forcibly threw her out of the matrimonial house, and she was forced to live in her parents’ house.
    • The Court also noted that the wife had a valid reason to leave the company of her husband, considering the nature of the allegations made by her in the complaint. During the trial against him, the husband had argued that even after filing the criminal complaint, his wife had been sending him messaged conveying her willingness to join him. Thus, it cannot be said that the wife had deserted the husband and wanted to put an end to the marital relation and cohabitation.
  7. Today the Karkardooma Courts  Delhi deferred its verdict in the bail application filed by former Jawaharlal Nehru University (JNU) student Umar Khalid in an Unlawful Activities (Prevention) Act (UAPA) case registered against him in connection with the Delhi Riots of February 2020.
  8. Today the Karnataka High Court declined to quash the charge of rape framed under Section 376 of the Indian Penal Code (IPC) against a man accused of raping and keeping his wife as a sex slave, in what could be a significant development on jurisprudence surrounding consent in marital relationships.  (Hrishikesh Sahoo v. State of Karnataka)
    • the institution of marriage cannot be used to confer any special male privilege or a license for unleashing of a “brutal beast” on the wife.
    • “A brutal act of sexual assault on the wife, against her consent, albeit by the husband, cannot but be termed to be a rape. Such sexual assault by a husband on his wife will have grave consequences on the mental sheet of the wife, it has both psychological and physiological impact on her. Such acts of husbands scar the soul of the wives,”
    • “Institution of marriage does not confer, cannot confer and in my considered view, should not be construed to confer, any special male privilege or a license for unleashing of a brutal beast. If it is punishable to a man, it should be punishable to a man albeit, the man being a husband,” 
    • “The contention of the learned senior counsel that if the man is the husband, performing the very same acts as that of another man, he is exempted. In my considered view, such an argument cannot be countenanced,” 
    • the wife registered a complaint against the husband for offences punishable under Sections 506 (punishment for criminal intimidation) 498A (cruelty to wife) 323 (Punishment for voluntarily causing hurt) 377 (Unnatural offences) of the Indian Penal Code (IPC) and Section 10 (aggravated sexual assault) of the Protection of Children from Sexual Offences Act, 2012 (POCSO).
    • The Special Court framed charges against the petitioner-husband for offences punishable under Sections 376 (rape), 498A and 506 of IPC and Section 5(m) and (l) read with Section 6 of the POCSO Act.
    • The Court framed the issue for examination as follows:-
      • Whether cognizance being taken against the petitioner-husband for offence punishable under Section 376 of IPC is tenable in law?
        • I have become a sex slave to my husband right from the day of my marriage. I was compelled and forced to have unnatural anal sex, oral sex by imitating the sex films. My husband did not leave me from giving him forcible sex even after pregnancy and had no courtesy to continue with sex even after my baby got terminated.
        • My husband is totally an inhuman and he forced me to perform all unnatural sex in front of my daughter and many occasions he had beaten her and had forcible sex with me. There was countless sexual harassment which no female in the world would like to express and I want my name and my daughter’s name in the complaint to be undisclosed and punish my husband. I am terrible in untold pains from knowing that my husband had sexually harassed my daughter by bringing her early from school and also I do not want any daughter or any mother to undergo the sufferings which both me and my daughter have suffered.
        • The communications that are made or voluntary letters written by both the wife and daughter are so chilling and abhorrent that they cannot be reproduced in the order.
        • They were several decades ago. It was founded and remained on the premise of a contract in the medieval law that husbands wielded their power over their wives. In the Victorian era, women were denied the exercise of basic rights and liberties and had little autonomy over their choice. Their statutes were nothing beyond than that of materialistic choices and were treated as chattels.
        • Post Republic, India is governed by the Constitution. The Constitution treats woman equal to man and considers marriage as an association of equals. The Constitution does not in any sense depict the woman to be subordinate to a man. The Constitution guarantees fundamental rights under Articles 14, 15, 19 and 21 which are right to live with dignity, personal liberty, bodily integrity, sexual autonomy, right to reproductive choices, right to privacy, right to freedom of speech and expression. Under the Constitution, the rights are equal; protection is also equal.
    • Sexual intercourse or sexual acts by a man with his own wife, the wife not being under fifteen years of age, is not rape.
      • Therefore, a woman being a woman is given certain status; a woman being a wife is given a different status. Likewise, a man being a man is punished for his acts; a man being a husband is exempted for his acts. It is this inequality that destroys the soul of the Constitution which is Right to Equality.
      • But, when it comes to Section 375 of IPC the exception springs. In my considered view, the expression is not progressive but regressive, wherein a woman is treated as a subordinate to the husband, which concept abhors equality. It is for this reason that several countries have made such acts of the husband penal by terming it marital rape or spousal rape.
      • Therefore, the Code that was made by the rulers then, has itself abolished the exception given to husbands.
      • In my considered view, such an argument cannot be countenanced. A man is a man; an act is an act; rape is a rape, be it performed by a man the “husband” on the woman “wife”.
      • Every ingredient of rape is met with in the alleged complaint. If it were to be a common man, the allegation on the face of it be punishable under Section 376 of IPC, why not the husband-petitioner. It is for the petitioner to come out clean in the trial, if he is so much in the defensive of his acts. Interjecting the trial in the teeth of the aforesaid complaint and the charge being framed would become a travesty of justice.
  9. Today the Mumbai City Civil Court refused interim relief to Bollywood actor Salman Khan in his defamation suit filed against Ketan Kakkad and others for allegedly making derogatory remarks against him and his family over a land sale transaction.
    • Kakkad had attempted to purchase a plot of land beside Khan’s farmhouse in Panvel. However, that transaction was cancelled by the authorities on the ground that it was illegal.
    • Kakkad then allegedly started raising false and baseless accusations that the transaction had been cancelled at the behest of Khan and his family members.
    • Singh alleged that Khan’s counsel had approached Kakkad offering him money to give up the Panvel land and the present suit was filed after Kakkad had refused the offer.
  10. Yesterday the Union Home Secretary wrote to states and union territories, Given the overall improvement in the COVID-19 pandemic situation in the country, there is no further need to invoke the Disaster Management Act for containment measures.
  11. On Monday the Rajasthan High Court allowed a transfer petition filed by Bollywood actor Salman Khan, and agreed to hear all appeals filed against the Magistrate verdict in relation to the 1998 blackbuck poaching case together. (Salman Khan v State of Rajasthan)
  12. Today Justice KN Phaneendra, former judge of the Karnataka High Court, has been appointed as an Upalokayukta of the State.
  13. Today the Madhya Pradesh High Court dismissed a revision petition filed by an advocate charged for advising his rape accused clients and the prosecutrix to hide material facts from the police and courts.  (Hiralal Dhurve v. The State of Madhya Pradesh and others)
  14. Today the Calcutta High Court directed the West Bengal government to produce before the Court, the case diary/ report about the investigation into the violence in Birbhum district of West Bengal, in which 8 persons were killed allegedly in retaliation to the murder of local All India Trinamool Congress (TMC) leader Bhadu Sheikh.
  15. The March 2021 report of the Supreme Court-appointed Committee formed to ascertain feedback on the now repealed Farm Laws made some key recommendations towards the agricultural marketing situation in the country.
  16. Today the Delhi High Court has held that unfounded accusations of unchastity or extra-marital relationship is a grave assault on character, reputation and health of a spouse which causes mental pain, and suffering and, therefore, amounts to cruelty.  (Jyoti Yadav v Neeraj Yadav)
  17. Last week the Telangana High Court dismissed a public interest litigation (PIL) petition against the scheduled release of upcoming Telugu movie “RRR”. (Alluri Sowmya v Govt of India)
  18. Today the Madurai Bench of the Madras High Court reiterated that promotion cannot be claimed as a matter of right by an employee. (B Muthuramalingam v. The Secretary)
  19. Pranit Bag, a practising counsel at the Calcutta High Court, has been called as a Barrister to the Bar Council of England and Wales, as a member of The Honouroble Society of Gray’s Inn.
  20. Today the Calcutta High Court took suo motu cognisance of the violence in Birbhum district of West Bengal, in which 8 persons were killed allegedly in retaliation to the murder of local All India Trinamool Congress (TMC) leader Bhadu Sheikh.
  21. On Monday A Division Bench of Bombay High Court upheld a single-judge order which permitted the shareholders of Reliance Commercial Finance Ltd (RCFL) to carry out a voting process based on a Debenture Trust Deeds signed by the shareholders in compliance with the Reserve Bank of India (RBI) circular.  (Securities and Exchange Board of India v. Rajkumar Nagpal & Ors.)
  22. Today the Rouse Avenue courts Delhi has summoned Rajya Sabha Member of Parliament (MP) Subramanian Swamy as an accused in a defamation case filed by Bharatiya Janata Party’s Tajinder Pal Singh Bagga over a tweet on the micro-blogging site. (Tajinder Pal Singh Bagga v. Subramanian Swamy)
  23. A public interest litigation (PIL) has been filed before the Calcutta High Court alleging that attempts have been made on the life of West Bengal Chief Minister (CM) Mamata Banerjee during her air travels on more than one occasion.
  24. A petition by a Gram Panchayat member challenging an order preventing her from contesting as a member of a scheduled tribe (ST) community, was rejected by the Karnataka High Court since she did not belong to the community by birth and had not proved that she belonged to the community through marriage.  (Archana MG v. Abhilasha and Ors)

Legal Prudent Fraternity