Today’s Legal Updates

Saturday, 24th June 2023



Article – 243ZG Bar to interference by courts in electoral matters.

Notwithstanding anything in this Constitution, —
(a) the validity of any law relating to the delimitation of constituencies or the allotment of seats to such constituencies, made or purporting to be made under article 243ZA shall not be called in question in any court.
(b) no election to any Municipality shall be called in question except by an election petition presented to such authority and in such manner as is provided for by or under any law made by the Legislature of a State.

Today’s Legal Updates: 

  1. The Allahabad High Court denied protection to an inter-faith couple in a live-in relationship, while noting that the Supreme Court has not promoted live-in relationships, even if it may have accepted such relations to be a social reality.  (Kiran Rawat & Anr v State)
    • A bench of Justices Sangeeta Chandra and Narendra Kumar Johari observed that law has traditionally been in favour of marriage and that the Supreme Court did not have any intention to unravel the fabric of Indian family life when it made observations on live-in relations in various cases.
    • the High Court’s order, The observations of the Supreme Court as aforesaid however cannot be considered to promote such relationships. Law traditionally has been biased in favour of marriage. It reserves many rights and privileges to married persons to preserve and encourage the institution of marriage. The Supreme Court is simply accepting a social reality and it has no intention to unravel the fabric of Indian family life.
    • the Court said, We believe that it is a social problem which can be uprooted socially and not by the intervention of the Writ Court in the garb of violation of Article 21 of the Constitution of India unless harassment is established beyond doubt.
    • The Court found that, instead of filing a criminal complaint against the alleged harassment, “only a fictitious application with certain allegations, particularly by such persons as the petitioners herein enjoying a live-in relationship, is moved under Writ jurisdiction of the High Court.”
    • The Court added that the case appeared to be “a circuitous way to get the seal and signature of the High Court upon their conduct without any verification of their age and other necessary aspects required to be done by the appropriate authority.”
    • the Court observed, In fact any sexual, lustful, affectionate acts such as kissing, touching, staring etc. are ‘Haram’ in Islam before marriage because these are considered parts of ‘Zina’ which may lead to actual ‘Zina’ itself. The punishment for such offence according to Quran (chapter 24) is hundred lashes for the unmarried male and female who commit fornication together with the punishment prescribed by the “Sunnah” for the married male and female that is stoning to death.
    • the Court observed, Awareness has to be created in young minds not just from the point of view of emotional and societal pressures that such relationships may create, but also from the perspective that it could give rise to various legal hassles on issues like division of property, violence and cheating within live-in relationships, rehabilitation in case of desertion by or death of a partner and handling of custody and other issues when it comes to children born from such relationships. Partners in a live-in relationship do not enjoy an automatic right of inheritance to the property of their partner.
    • the Court added, In case the petitioners approach the appropriate Court of law or to the police authority concerned raising their grievances, the same may be considered in accordance with law.
  2. On Friday a division bench of the Calcutta High Court effectively stayed a single-judge direction for a Central Bureau of Investigation (CBI) inquiry into allegations that nomination papers filed by candidates seeking to contest the upcoming West Bengal Panchayat elections had been tampered with by a returning officer.  (The District Magistrate of Howrah & Others Vs Kashmira Begam Khan & Others)
    • Justices Arijit Banerjee and Apurba Sinha Ray passed the order on an appeal filed by the District Magistrate of Howrah and three other officers (appellants) challenging the single-judge’s June 21 order in the matter.
    • the Court ordered, Since both parties have arguable cases, which require our careful consideration, let CBI not take any steps in terms of the impugned order till 26.6.2023. Other portions of the impugned order shall remain untouched for the time being.
    • On June 21, Justice Amrita Sinha ordered a CBI probe into the matter and directed the agency to file its report by July 7, a day before the panchayat elections are scheduled to be held.
    • In the appeal challenging this order, the appellants raised the following arguments:
      • A CBI enquiry or investigation cannot be ordered for the mere asking. Just because some allegations are made against the officers in the administration, the premier investigating agency of the country cannot be directed to conduct an enquiry. Any and every administrative lapse cannot be subjected to CBI enquiry.
      • Various documents are there to indicate that the candidates did not and could not have filed the caste certificate along with their nominations.
      • The writ petition filed by the candidates was bad for non-joinder of necessary parties. The appellants, against whom allegations have been made in the writ petition, were not individually served before the writ petition was moved or before the June 21 order was passed.
      • Since the single judge recorded reasons in the June 21 order under challenge in the appeal, it would make the order a “judgment” under the Letters Patent, 1865.
    • the respondents raised the following contentions:
      • The appeal before the division bench is not maintainable as the June 21 order is not a “judgment” within the meaning of Clause 15 of the Letters Patent, 1865. The single judge has not conclusively decided anything in the June 21 order. Rather, the judge has merely ordered a preliminary inquiry by the CBI.
      • The State is trying to shy away from a CBI enquiry.
      • The writ court (High Court) has sufficient power to direct CBI enquiry in a fit case.
      • It is not understood how the State got hold of documents that have been annexed to the appeal papers as such documents are supposed to be in the exclusive custody of the State Election Commission.
      • The appellant’s contention regarding the non-joinder of parties was not urged before the single judge. Further, since the government of West Bengal has been made a party, non-joinder of any of the officers was of no consequence.
    • Question framed by the division bench Firstly, what are the circumstances in which a CBI enquiry may be justifiably directed by the Court? Secondly, whether or not the facts of the present case portray or depict one of such circumstances?
  3. The Gauhati High Court Bar Association (GHCBA) has decided to hold a sit-in protest on June 27, Tuesday, opposing the Assam government’s proposal to shift the High Court and other courts in and around Guwahati to a single site on the northern bank of the Brahmputra.
    • The GHCBA president, Senior Advocate Mrinal Kumar Choudhury said, On Tuesday, we will hold a sit-in-demonstration from 11:00 am to 1:00 pm to protest against proposed shifting as well as against the constitution of a high level committee for the purpose of shifting the High Court.
    • The association has also addressed a memorandum to the President of India, the Chief Justice of India, the Union Law Minister, and the Assam Chief Minister opposing the proposed shift of the High Court and the city’s sessions court to a ‘judicial city‘ in North Guwahati’s Rangmahal area.
    • the distance between the two sites is roughly 25 km, which is well over an hour’s commute taking into account the traffic conditions. However, a new bridge is being constructed, which is expected to reduce the travel time by half.
    • the GHCBA’s representation said, The place where the proposed judicial city is to come up is yet to have any kind of infrastructure and at present it can be reached from Guwahati by travelling over the Saraighat Bridge, which takes about 30 kms of travel or by Ferry Service. However, a new bridge is being constructed over the river Brahmaputra, by a Company which has the dubious distinction of its under-construction bridge over river Ganga collapsing like a pack of cards.
    • the memorandum stated, The haste in the decision-making process and the manner, in which it was taken in a way, raises serious question mark on the independence and autonomy of the Judiciary. The Gauhati High Court Bar Association is categorical in its opposition to the move to shift the Gauhati High Court and other Courts to Rangmahal.
    • the bar association proceeded to highlight, Lawyers and litigants will have to converge at one or two points and finally cross the bridge from a particular point over the river or in its bank and take a single route which would create severe traffic congestion over the bridge and as a result of which valuable time, fuel and energy would be wasted, in the process adversely impacting the system and even the environment. It can be reasonably expected that during the peak hours, the rush of vehicles trying to cross the bridge at a time, would lead to utter chaos.
  4. The Karnataka High Court dismissed a plea by Congress Member of Legislative Assembly (MLA), Satish Krishna Sail challenging the pardon granted to a co-accused in an illegal mining case, after the latter turned an approver in the case. (M/s Shree Mallikarjun Shipping v CBI)
    • Justice M Nagaprasanna upheld an order of the special MP/MLA judge, who had granted pardon to the co-accused in a case relating to the alleged illegal export of iron ore in which Sail is also an accused.
    • the High Court observed, The only rider to the said power to be exercised by the concerned Court on an application under Section 306 of the CrPC is that it should not be an order which bears no application of mind.
    • the High Court said, It is a well reasoned order which takes note of several judgments on the issue rendered by the Apex Court and allows the application filed by accused No.4. Therefore, I do not find any warrant to interfere with the order passed by the concerned Court.
  5. On Friday the Bombay High Court briefly alluded to the difficulties faced by district and subordinate court judges who have to work in far-flung or remote areas.
    • Some judicial officers even have to hold court while tigers roam nearby, the Court remarked while hearing a case concerning Anganwadi workers in such areas.
    • The Court on Friday directed the Central and the State governments to ensure that proper mobile handsets were provided to Anganwadi workers in remote areas of Maharashtra within 3 months.
    • This was to enable such workers to enter data in the POSHAN tracker app of the Central government, which tracks activities of Anganwadi centres in the country.
    • the Court added, Some of our judicial officers sit with even tigers in their court there.
    • the Court ordered, We are not concerned how Central and State government arrange the financial affair of 60-40% funding. We urge the Centre to attend to the matter at maximum possible priority. The process will not be stopped for non-receipt of funds from Centre. The State will proceed.
    • the Court said, The handsets are required for the ultimate beneficiary which is the mother and children. This is the only way financial support can be made available to beneficiary. That is the primary objective and procedural requirements will not be a hindrance.
  6. On Friday the Gauhati High Court asked to Assam government to be more proactive towards implementing the laws concerning the welfare and employment of transgender persons.
    • A bench of Chief Justice Sandeep Mehta and Justice Devashis Baruah was hearing a batch of petitions regarding the welfare of transgender persons in Assam.
    • The plea moved by activist and advocate, Swati Bidhan Baruah pointed out that the recent recruitment for sub-inspector and constable posts in the Assam Police did not have a separate category for transgender persons. Instead, they were clubbed with male candidates.
    • hief Justice Mehta to criticise the State for its insensitive approach, Physical standards are the same – how can that can be done? You seem flustered, non-plussed. This is totally against what is mandated by law, not at all showing sensitiveness to the category as is required. Because proceedings are too slack. We would say the response is not forthcoming at the desired pace, need to pull up your socks, okay?
    • Chief Justice Mehta remarked, This is very vague. What direction has been given (about formation of the board)? Letter has been silent. Why should you be so vague? Simple direction could have been forwarded with the proposal.

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Adv. Vishal Yadav (Lucknow bench of Allahabad High Court)

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