Monday, 25th December 2023

The Constitution is not a mere Lawyers Document, it is a Vehicle of Life, and its Spirit is always the Spirit of Age.

Notes: – UN predicts groundwater level in India will reduce to ‘low’ by 2025.’

Legal Awareness: – CONSTITUTION OF INDIA

Part – XVIII EMERGENCY PROVISIONS

Article – 357 Exercise of legislative powers under Proclamation issued under article 356.

  1. Where by a Proclamation issued under clause (1) of article 356, it has been declared that the powers of the Legislature of the State shall be exercisable by or under the authority of Parliament, it shall be competent—
    1. for Parliament to confer on the President the power of the Legislature of the State to make laws, and to authorise the President to delegate, subject to such conditions as he may think fit to impose, the power so conferred to any other authority to be specified by him in that behalf;
    2. for Parliament, or for the President or other authority in whom such power to make laws is vested under sub-clause (a), to make laws conferring powers and imposing duties, or authorising the conferring of powers and the imposition of duties, upon the Union or officers and authorities thereof;
    3. for the President to authorise when the House of the People is not in session expenditure from the Consolidated Fund of the State pending the sanction of such expenditure by Parliament.
  2. Any law made in exercise of the power of the Legislature of the State by Parliament or the President or other authority referred to in sub-clause (a) of clause (1) which Parliament or the President or such other authority would not, but for the issue of a Proclamation under article 356, have been competent to make shall, after the Proclamation has ceased to operate, continue in force until altered or repealed or amended by a competent Legislature or other authority.

Today’s Legal Updates: 

  1. Mumbai City Civil and Sessions Court eight judges in Maharashtra have been transferred from the court’s principal branch to its new branch in Mazgaon, Mumbai with effect from January 2, 2024, amid protests by lawyers against such a transfer.
    • The eight judges have been assigned to hear commercial matters, criminal appeals, revision applications and summary suits at the Mazgaon branch.
    • The transfer of judges to the Mazgaon branch was notified on December 21, 2023.
    • the Bombay City Civil and Sessions Court Bar Association initiated a two-day hunger strike (on December 21 and December 22) as a mark of protest against the move.
    • Bar association member Advocate Pradeep Gandhy told, The Bar members have not been taken into confidence before the construction of the building. I have written several letters about this to the Chief Justice of the Bombay High Court. The protests will continue.
    • A press release by the association said, The absence of any communication, meeting, or visit from the principal Judge during the protest on 22/12/2023 emphasizes a disregard for the advocates’ concerns. The Hon’ble principal judge has not only failed to uphold his pledge as a judge but has also neglected his moral and ethical obligations. His actions are a clear violation of the trust bestowed upon him.
    • The building at Mazgaon was inaugurated on April 24, 2023, with forty-two courtrooms, out of which twenty-one are assigned for metropolitan magistrate courts and twenty-one are assigned for city civil and sessions courts. The Magistrate courts have already been occupied since April.
    • the Bombay city civil and sessions court now has four branches. While the principal branch has fifty-nine judges (out of which eight have been transferred), the branch at Dindoshi has sixteen judges and the branch at Sewree (which deals with only fast-track criminal matters) has four judges.
    • The Bar association has raised concerns that the transfer of cases to the new courts would be inconvenient not just for the lawyers, but also for the litigants as there is no adequate transport facility to the Mazgaon branch.
  2. Recently the High Court of Jammu and Kashmir and Ladakh held A minor person (below the age of 18 years) cannot be punished for the offence of perjury for making a false rape claim or a false claim of sexual assault under the Protection of Children from Sexual Offences Act (POCSO Act).
    • Justice Rajnesh Oswal explained that Section 22 (2) of the POCSO Act prohibits the punishment of a child for giving false information about a rape or sexual assault case.
    • the Court held, A perusal of the Section 22(2) of the Protection of Children from Sexual Offences Act would reveal that if a false complaint has been made or false information has been provided by a child, no punishment shall be imposed upon such child.
    • the High Court said, She was minor when her statement was got recorded by the Police and she has given the justification for making the statement before the Court in respect of slapping only because the person who had drafted her application for registration of FIR told her to make additions, as the Police could not arrest the accused in case of allegations of slapping only.
    • the High Court held, Otherwise also, in order to prosecute and punish a witness for offence of perjury, it must be established that the (false) statement was made by him deliberately and consciously … So far as the instant case is concerned, there is absolutely no other evidence on record which may establish the fact that the witnesses made false statements deliberately before the trial court contrary to the statements made during investigation before the learned Magistrate.
  3. Recently the Delhi High Court observed that wife raising allegations about ‘manhood’ of her husband can be very depressing and mentally traumatic which ultimately contributes to mental cruelty and harassment of the husband.
    • A Division Bench of Justices Suresh Kumar Kait and Neena Bansal Krishna held that forcing one’s husband to go through impotency test coupled with allegations of dowry demands, extramarital affair and calling him a womaniser is sufficient to create mental agony and trauma.
    • the Court observed, The admissions of the appellant (wife) establish that the respondent was made to undergo the impotency test in which he was found to be fit. Clearly, such averments and allegations about the manhood of a person would not only be depressive but also mentally traumatic for any person to accept.
    • the Court held, Unfortunately, here is a case where the husband himself is being publicly harassed, humiliated and verbally-attacked by his wife, who had gone to the extent of levelling allegations of infidelity during his office meetings in front of all his office staff/guests. She even took to harassing the woman workers of his office and left no stone unturned to portray him as a womanizer in the office. This behaviour is but an act of extreme cruelty to the respondent/husband.
      • The couple got married in the year 2000 and had a son.
    • The Court, therefore, concurred with the family court’s order and held that the husband was subjected to acts of cruelty which entitled him to divorce under Section 13 (1)(ia) of the Hindu Marriage Act.
  4. Recently the Delhi High Court held that information in relation to the interception, tapping or tracking of a phone is exempt from disclosure under Section 8(a) of the Right to Information Act, 2005 (RTI Act).  (Telecom Regulatory Authority of India v Kabir Shankar Bose & Ors)
    • A Division Bench of Justices Vibhu Bakhru and Amit Mahajan said that any order by the concerned government in relation to interception or tapping or tracking of a phone is passed when the authorized officer is satisfied that it is necessary to do in the “interest of sovereignty and integrity of India, the security of the State, friendly relations with the foreign states or public order or for preventing incitement to the commission of an offence”.
    • the Court noted, In a given case, the disclosure of any such information, therefore, may impede the process of investigation, and may be construed to prejudicially affect the sovereignty and integrity of India, the security, the strategic, scientific, and economic interest of the State, relations with the foreign states or lead to incitement of an offence, and would therefore be exempted from disclosure under terms of Section 8 of the RTI Act.
    • the Court stressed, To hold that asking for information in relation to interception or tracking or tapping of a phone would be within the power of TRAI under Section 12 of the TRAI Act, would not be in conformity with the functions specified in Section 11 of the TRAI Act.
    • As referred to above, the authority was established for the purpose of regulating telecom services to protect the interest of service providers and consumers in the telecom sector, and to promote and ensure orderly growth of the sector.
  5. Recently the Delhi High Court held that the legal advice given by the Solicitor General of India to the Government of India and other government departments is exempt from disclosure as per Section 8(1)(e) of the Right to Information Act of 2005 (RTI Act).  (Union of India and Anr v Subhash Chandra Agrawal)
    • Justice Subramonium Prasad observed that as per the rules of engagement of a law officer for Union of India — Law Officer (Conditions of Service) Rules, 1987 – and the judgements of the Supreme Court, the relationship between the Solicitor General of India and the Government of India is that of a fiduciary and a beneficiary.
    • Justice Prasad concluded, This Court finds no infirmity with the argument put forth by the Ld. Counsel for the Petitioner [Union of India] that the advice tendered by the Ld. Solicitor General to the Union of India and other various government departments is done in the nature of a fiduciary, and hence the exception of Section 8(1)(e) of the RTI Act has been invoked.
    • The Court held that the petitioner has not been able to demonstrate as to what is the public interest that would be subserved so as to invoke the provisions of Section 8(2) of the RTI Act. In the absence of any public interest, the information sought for by the Respondent, which is exempted under Section 8(1) of the RTI Act, this Court is not inclined to invoke the provisions of Section 8(2) of the RTI Act.
    • The Court then proceeded to set aside the CIC order and disposed of the plea
  6. Recently the Delhi High Court passed a slew of directions for expeditious disposal of criminal cases pending against the Members of Parliament (MPs) and Members of Legislative Assembly (MLAs).
    • A Division Bench of Acting Chief Justice Manmohan and Justice Mini Pushkarna ordered the designated courts hearing such cases to list the cases against MPs and MLAs at least once a week and also ordered courts not to grant any adjournment unless extremely necessary.
    • the Court ordered, the cases in which orders of stay of trial have been passed and are continuing for a period of more than six months, are directed to be disposed of expeditiously by the concerned Benches of this Court. The Registrar General shall file a status report of the said cases before the next date of hearing.
    • the Bench ordered, the Principal District and Sessions Judge, cum-Special Judge (PC Act) (CBI), Rouse Avenue Court Complex (designated MP/MLA court) shall ensure almost equal pendency of such cases in the designated Courts, at the same level. However, while considering this aspect the Principal District and Sessions Judge, cum-Spcial Judge (PC Act) (CBI), shall also bear in mind the nature and complexity of such cases and the fact that in a given case there are multiple accused persons or extremely large number of witnesses who are to be examined.
    • The Principal District and Sessions Judge, cum-Spl. Judge (P.C. Act) (CBI), Rouse Avenue Court Complex, Delhi and the Central Project Coordinator (CPC) of this Court shall also ensure that sufficient technological infrastructure is available to enable the designated Courts to adopt such technology as is expedient for effective and efficient functioning and file a report in this respect. In case any training is required to be imparted in this respect the same shall be imparted through the Delhi Judicial Academy to the concerned stakeholders.
  7. On Friday the Advocate Brijesh Trivedi was elected the President of the Gujarat High Court Advocates’ Association (GHCAA).
    • Trivedi was voted as the President with 1,060 votes defeating his nearest rival and former GHCAA President Pravinsinh Jadeja who secured 580 votes.
    • Advocate Virat Popat was elected the Vice President. Advocate Hardik Brahmbhatt retained the post of General Secretary bagging 835 votes. This is the third time that he has been elected the General Secretary.  
    • Advocates Bhavik Pandya and Darshan Dave were elected Joint Secretary and Treasurer respectively.
  8. Recently the Allahabad High Court held that verbal abuse by utterance of caste name of a member of Scheduled Caste or Scheduled Tribe would not be an offence under Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989 (SC/ST Act) if such incident takes place within a house where no outsider is present. (Bhaiya Lal Singh v. State of UP)
    • Justice Shamim Ahmed said that a person can be subjected to trial for the offence under Section 3(1)(s) of the SC/ST Act, only if utterances by him were made in any “place within a public view”.
    • the Court noted, An offence under the Act, 1989 would be made out when a member of the vulnerable section of the society is subjected to indignities, humiliations and harassment in any place within the public view.
    • the Court said, It is further observed that as per his own case, the respondent No.3 [complainant] clearly stated in the F.I.R. and in his statement recorded under Section 161 CrPC that whatever incident took place that took place inside his house, thus, it is not a place within a public view as no outsider was sitting in the room nor anyone has seen the alleged incident.
    • the Court concluded, Thus, there was no formation of unlawful assembly.
    • the Court said, This story as made by the respondent No.3 [complainant] appears to be unbelievable and unacceptable … no independent witness has supported the case that the appellant has committed the offence of criminal intimidation, thus, the ingredients of Section 506 I.P.C. is also not attracted in the present case.
  9. Recently the Delhi High Court has held that right to procreation and parenthood is a fundamental right of a convict and protected under Article 21 of the Constitution.  (Kundan Singh v The State Govt of NCT Delhi)
    • Justice Swarana Kanta Sharma clarified that this right is not absolute but depends on the context and by considering factors such as the prisoner’s parental status and age, a fair and just approach must be adopted to preserve the delicate equilibrium between individual rights and broader societal considerations.
    • the Court said, Judiciary in Bharat, has always stubbornly refused to hold that prisoners have no fundamental rights, this Court following the same tradition as handed over by judges of the Hon’ble Apex Court and this Court respectfully takes the intent to interpret the constitutional rights in favour of upholding and including new situations and challenges holds that right to parenthood and procreation is fundamental right of a convict in peculiar circumstances of a case.
    • the single-judge said, In this Court’s opinion, if the rules do not provide for a particular specific ground, it cannot bar a Constitutional Court to go beyond the specific mention of a ground and can, in the facts and circumstances of a case, interpret and adjudicate a prayer before it by referring to the intent and content of the Rules and the practical context in which they need to be interpreted.
  10. Recently the Delhi High Court has constituted a committee under the Delhi health secretary to suggest ways to improve healthcare facilities in Delhi’s prisons.  (Mr Amandeep Singh Dhall v Directorate of Enforcement)
    • Director General (Prisons), Chief Medical Officer of Delhi Prisons, two senior jail visiting judges of district courts, Secretary of the Delhi State Legal Services Authority as well as advocates Sanjay Dewan and Gayatri Puri will also be the committee’s members.
    • the Court ordered, the above committed will give suggestions, regarding improving the health care facilities in the prisons and ways to promote equal health care to all prisoners, within a period of one month to this Court. The committee will also specifically inform the Court as to whether facilities are available in the jail hospital to deal with emergency situations such as cardiac arrest, haemorrhages etc. as the first few minutes in such eventuality are crucial to save the life of a person.
    • the Court added, The issues so pointed out in the report mentioned above, will be addressed and the necessary supplies, equipment, medicines will be ensured to be provided within two days. The machines/medical equipment, if not in order, will be repaired or a substitute will be provided immediately by the State.
    • The Court considered, In this Court’s opinion, in cases of a convicted prisoner, contracting a disease or his health deteriorating and him being not extended health care is not part of his sentence. Similarly, in case of under trial prisoners, this fact becomes even more significant as some of the under trials may be suffering from serious diseases or may contract or suffer from serious diseases which may have the potential of being fatal or potentially disabling. Prisoners are human beings too and they retain some undeniable human rights which have to be acknowledged by every Court of law and the State.

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