Weekend Legal Updates

Saturday & Sunday, 25th & 26th February 2023

Legal Awareness: – CONSTITUTION OF INDIA

Part – Vl THE STATES

CHAPTER- IITHE STATE LEGISLATURE

Legislative Procedure

Article – 196 Provisions as to introduction and passing of Bills.

  1. Subject to the provisions of articles 198 and 207 with respect to Money Bills and other financial Bills, a Bill may originate in either House of the Legislature of a State which has a Legislative Council.
  2. Subject to the provisions of articles 197 and 198, a Bill shall not be deemed to have been passed by the Houses of the Legislature of a State having a Legislative Council unless it has been agreed to by both Houses, either without amendment or with such amendments only as are agreed to by both Houses.
  3. A Bill pending in the Legislature of a State shall not lapse by reason of the prorogation of the House or Houses thereof.
  4. A Bill pending in the Legislative Council of a State which has not been passed by the Legislative Assembly shall not lapse on a dissolution of the Assembly.
  5. A Bill which is pending in the Legislative Assembly of a State, or which having been passed by the Legislative Assembly is pending in the Legislative Council, shall lapse on a dissolution of the Assembly.

Weekend Legal Updates: 

  1. On Saturday Chief Justice of India (CJI) DY Chandrachud flagged what he termed a false sense of entitlement prevalent among students of National Law Universities (NLUs).
    • He was delivering the keynote address at the convocation ceremony of the National Academy of Legal Studies and Research (NALSAR), Hyderabad.
    • the CJI said, the outlook of legal education must be to improve law colleges across the country and not just few. The sense of entitlement that NLUs are better than other institutions lead to unnecessary wastage of energy. NLUs ought not work in field of isolation and the students (from NLUs) must not look down upon students from other law schools.
    • he opined, promoting empathy is the first step which educational institutions should take, and it can end the culture of elitism and exclusion… Empathy is not a personal attribute but require institutional change; people who come to courts are not just names on case dockets but also has individual struggles, which we seek to see.
    • he said, It can start with ending allotment of hostels on basis of entrance marks which leads to caste-based segregation.
    • he added, by reshaping legal educational model we can create empathy and weed out structural inequalities.
    • he said, now we see a lot of YouTube channels producing videos on legal concepts in simplified forms, YouTube is the new platform in law as is elsewhere. the number of views on these videos show the level of curiosity which our citizens have towards the legal discourse.
    • the CJI stated, Therefore, I would beseech NALSAR like other law schools to ensure that videos of quality legal education which you provide to your own law students do not become a shared monopoly of your students alone and is disseminated across the nation.
  2. On Saturday Chief Justice of India (CJI) DY Chandrachud said incidents of suicides among students from marginalized sections are increasing and research has shown that most such students are from Dalit and Adivasi communities.
    • he said, Prof Sukhdev Thorat has noted that most of students who died of suicide has been Dalits and Adviasis and that it then shows a pattern which we must question. In 75 years, we have focused on creating institutions of eminence but more than that we need to create institutions of empathy. I am speaking on this because the issue of discrimination is directly linked with lack of empathy.
    • he stated, Judges cannot shy away from social realities and instances of judicial dialogue is common across the globe. When the black lives matter movement emerged after the murder of George Floyd, all 9 judges of the US Supreme Court released a joint statement to the judiciary …on the degradation and devaluation of black lives. Harvard Law School professor says people forget what work civil rights lawyers did to educate the black community.
    • he said, It can start with ending allotment of hostels on basis of entrance marks which leads to caste based segregation.
    • he underlined, Not acting on incidents of abuse and bullying, not providing support system, ending fellowships, normalising stereotypes through jokes, are some of the basic things which every educational institutions must stop.
    • he said, n my view the experiment with NLUs was to create accessible institutions focussed on quality legal education and not to create elite institutions. However, the NLUs have been struggling to be accessible to a wide section of the society, concerns are continuously raised about the entrance exam pattern of NLUs which acts as a access barrier for students not well acquainted with English.
    • he stated, Financial barriers are serious and NLUs along with State governments should improve financial affordability.
  3. On Saturday Justice Sanjay Kishan Kaul of the Supreme Court said that any perceived obscenity in any book or work of art felt by a viewer is brought upon by the viewer himself.
    • Justice Kaul said, The judgement of course rejected such allegations. It held that the alleged obscenity which might or might not exist, was not the central theme of the novel. The perceived obscenity in a book or work of art is brought upon a viewer by the viewer himself. The constitutional principles of freedom of speech and expression weigh overwhelmingly in favour of the artist and cannot be disturbed.
    • the judge asked, What could be the benefit, especially if it comes at such a grave personal cost, as was the case with Professor Murugan, and very recently, with Salman Rushdie? Why did the makers of our Constitution, in line with democratic principles from across the world, chose to protect and grant privilege to such works, especially when the ramification of provocative art can be social disorder and at times even violence?
    • he said, In one stroke of the pen, somebody loses their freedom, property changes hands, one parent gains custody of a child at the cost of the other parent.
    • he said, Upon this world, they impose their own understanding and experience. Judges, like authors, are neither a sovereign, nor merely an agent.
  4. The Maharashtra government told the Bombay High Court the conditions prescribed in tender for redevelopment of the Dharavi slums in Mumbai were revised in view of the change in financial and material circumstances in the country from 2019 to 2022 and was done keeping in mind larger public interest. (Seclink Technologies Corporation v. Dharavi Slum Redevelopment, SRA & Ors.)
    • the affidavit emphasized, The conditions of the tender (under challenge) are based on the discussion amongst experts and taking into account the changed circumstances and is based on a rationale reasonable basis. There is no question of excluding anyone’s participation in the fresh tender.
    • the affidavit pointed out, This is because of the several factors such as financial and economic state of affairs in January, 2019 and in 2022 are materially different. The present economic state of affairs is materially affected by the impact of COVID-19 pandemic, Russia-Ukraine war, uncertainty over Rupee-USD rate, interest rate volatility and overall high-risk perception of common investor. There is also a material change in the availability of upfront vacant land to begin the project immediately.
    • the affidavit said, Any person who submits a bid can only legitimately expect that his bid is considered in a non- arbitrary and transparent manner. No person has a right to do business with the government as a matter of right. Seclink cannot force the tendering authority to invite tenders in a way that it would be able to participate.
    • the housing department said, In the instant case, the tendering process had been fair, transparent and in the larger public interest and the tender conditions were formulated by the experts taking into consideration the overall public interest and the nature of the project.
  5. On Wednesday the Supreme Court issued directions towards implementation of the Prohibition of Employment as Manual Scavengers and their Rehabilitation Act, 2013 and the Employment of Manual Scavengers and Construction of Dry Latrines (Prohibition) Act, 1993.  (Dr Balram Singh v. Union of India and ors)
    • The following directions were issued to the Central government:
      • (I) the respondent – Union shall place on record the steps taken pursuant to the judgment of this Court, viz.-a-viz. The Status of implementation of the 2013 Act i.e. Prohibition of Employment as Manual Scavengers and Their Rehabilitation Act, including the steps towards rehabilitation of such persons falling within the definition of ‘Manual Scavengers’.
      • (II) Steps taken towards abolition/demolition of Dry Latrines, statewise.
      • (III) Status of Dry Latrines and Safai Karamcharies in Cantonment Boards and Railways.
      • (IV) Employment of Safai Karamcharies in Railways and Cantonments Boards whether directly or indirectly i.e. through Contractors or otherwise.
      • (V) Statewise set up of Municipal Corporation and the nature of equipment (as well as the description of technical equipment), deployed by such bodies to mechanize sewage cleaning.
      • (VI) The feasibility of developing internet based solutions for real time tracking of sewage deaths and action taken by their concerned authorities including the appropriate Government towards payment of compensation and rehabilitation of families.
    • the Court had sought rehabilitation, cash assistance, and residential plots for existing manual scavengers. Stipends were also to be provided to their families so they could be trained in alternative professions, and the government was asked to identify and phase out the practice from railway tracks.
  6. On Saturday the Supreme Court judge Justice Hima Kohli said Finding and recognising women role models within armed forces and acclaiming them publicly would go a long way in creating a more inclusive and equitable eco system for all the members of the armed forces.
    • She was speaking at a seminar on the topic ‘Evolution and Future of Military Jurisprudence – An Indian Army Perspective’, organised by the Institute of Military Law at Manekshaw Auditorium in New Delhi.
    • Justice Kohli said, This decision of offering women permanent commission has opened up a whole new world of opportunities for young and aspiring women who are actively considering the option of pursuing a career in the armed forces. Now, they have an assurance that their careers need not be curtailed midstream but could blossom into a permanent commission, if they meet the benchmark.
    • she said, This great leap towards equality in the armed forces, will have a cascading effect. It sets a tempo for the society to promote gender equality and eliminates patriarchal attitude towards women.
    • she said, This will inspire the next generation of women to breakdown gender barriers.  Women officers can now qualify for all commanding posts, which places them on an equal footing with their male counterparts.
    • It ensures that no person can be subjected to punishment without following the due process of law.  Rule of law is an essential component of the basic structure of the Constitution of India.
    • she said, From my experience over the past three years, I can assure you that virtual hearings and virtual court rooms have gone a long way in enabling access to justice from the remotest part of the country.
    • Justice Kohli opined, It is time to update oneself by harnessing technology to establish the authenticity of the evidence, sound tracing of source, proper chain of custody and forensic analysis.
    • she said, They have the potential to improve relationships between the parties involved by resolving conflicts in a cooperative and an amicable manner. ADR can also help in finding a solution that is acceptable to all the parties involved so that they go back satisfied with the thought of attaining a peaceful resolution, facilitated by a trained Mediator.
  7. On Saturday the Delhi High Court stayed an order passed by mayor of Municipal Corporation of Delhi (MCD), Shelly Oberoi wherein she had directed fresh elections to be held to the MCD Standing Committee.
    • Justice Gaurang Kanth held a special hearing today at around 3 pm to hear the petition filed by Kawaljeet Sehrawat and Shikha Roy, the elected standing committee members from the Bharatiya Janata Party (BJP).
    • Oberoi, a member of the Aam Aadmi Party (AAP), had passed on order on Friday by which she ordered fresh elections for the MCD Standing Committee. The election was ordered to be held on Monday.
    • Sehrawat and Roy told the court that the mayor’s order was wrong because the elections have been completed successfully where the BJP and AAP both won three seats each.
  8. On Friday the Supreme Court held that in cases of reversal of acquittal, where two views are possible, the view which favors the accused has to be adopted.  (Roopwanti v. State of Haryana and Others)
    • A division bench of Justices Krishna Murari and BV Nagarathna said that in such cases, courts must keep in mind that the presumption of innocence in favor of the accused would stand strengthened and fortified and the prosecution will have an even greater responsibility to reverse the presumption.
    • the bench stated, In cases where a reversal of acquittal is sought, the courts must keep in mind that the presumption of innocence in favour of the accused, on grounds of it surviving the rigours of a full trial, is strengthened and stands fortified. The prosecution then, while still working under the same burden of proof, is required to discharge a more onerous responsibility to annul and reverse the fortified presumption of innocence. This fortification of the presumption of innocence has been held in a catena of judgments by this court.
    • An order of acquittal is to be interfered with only when there are “compelling and substantial reasons”, for doing so. If the order is “clearly unreasonable”, it is a compelling reason for interference. When the trial court has ignored the evidence or misread the material evidence or has ignored material documents like dying declaration/report of ballistic experts etc., the appellate court is competent to reverse the decision of the trial Court depending on the materials placed.
  9. The Punjab and Haryana High Court observed the right to marry a person of one’s choice is not a modern one but was prevalent in ancient times and finds mention in holy books like Ramayana, Mahabharata as ‘Swayamvar.  (Tek Chand v. State of Punjab and Others)
    • The Constitution of India enforces this right as a fundamental right under Article 21, single-judge Justice Jagmohan Bansal said, Swayamvar i.e. marriage by your own choice is not a modern phenomena. Its roots can be traced in ancient history including holy books like Ramayana, Mahabharata. Our Constitution in terms of Article 21 is enforcing this human right as fundamental right.
    • the Court observed, hey have right to live their life in the way and manner they like. They are blessed with two children. With a pending criminal case, nobody can lead a happy life. State has no right to interfere in the life of a duly married couple.
    • the Court stated, Continuance of criminal proceedings is not only going to disturb life of the petitioner but also there are all possibilities of disturbance in life of respondent No. 3 and their children. Our State is a welfare State, however, there is no mechanism to provide accommodation, food and other basic daily needs to the dependent of a convicted person. In our country, except stray cases of urban population, it is man who is earning and taking care of his wife and children.
    • the Court, It (marriage) is not physical meeting of two persons of opposite sex whereas it is most important & pious institution of our society where two families become one. Importance of marriage further finds support from the fact that a child from a couple without marriage is not as recognised as a child from a duly wedded couple.
  10. Congress spokesperson Pawan Khera has been booked by the Uttar Pradesh Police and Assam Police after he botched up the name of Prime Minister Narendra Modi at a press conference.
    • Khera had said, If Narasimha Rao could form a JPC (Joint Parliamentary Committee), if Atal Bihari Vajpayee could form a JPC, then what problem does Narendra Gautam Das…sorry Damodardas Modi have?
    • Section 153A of Indian Penal Code (IPC) – Known in common parlance as hate speech, the provision penalises promoting of enmity between different groups on grounds of religion, race, place of birth, residence, language, etc., and doing acts prejudicial to maintenance of harmony.
    • Section 295A IPC – It criminalises hurting religious sentiments and covers within its scope deliberate and malicious acts, intended to outrage reli­gious feelings of any class by insulting its religion or reli­gious beliefs.
    • Whoever, with deliberate and malicious intention of outraging the religious feelings of any class ofcitizens of India by words, either spoken or written, or by signs or by visible representations or otherwise, insults or attempts to insult the religion or the religious beliefs of that class, shall be punished with imprisonment of either description for a term which may extend to three years or with fine, or with both.
    • Section 500 IPC – criminalises defamation. It says that whoever defames another shall be punished with simple imprisonment for a term which may extend to two years, or with fine, or with both.
    • Section 504 IPC – It criminalises intentional insult with the intent to provoke breach of the peace.
    • Whoever intentionally insults, and thereby gives provoca­tion to any person, intending or knowing it to be likely that such provocation will cause him to break the public peace, or to commit any other offence, shall be punished with imprisonment of either description for a term which may extend to two years, or with fine, or with both.”
    • Section 505 IPC – It criminalises statements conducing to public mischief.
    • Section 505(2) IPC – It is part of Section 505 and specifically criminalises statements creating or promoting enmity, hatred or ill-will between classes.
    • Whoever makes, publishes or circulates any statement or report containing rumour or alarming news with intent to create or promote, or which is likely to create or promote, on grounds of religion, race, place of birth, residence, language, caste or community or any other ground whatsoever, feelings of enmity, hatred or ill-will between different reli­gious, racial, language or regional groups or castes or communi­ties, shall be punished with imprisonment which may extend to three years, or with fine, or with both.
  11. On Friday the Rajasthan High Court quashed and set aside the appointment of Dr Dev Swaroop as vice-chancellor of Dr Bhimrao Ambedkar Law University in Jaipur on the ground that he has no background in legal education.  (Professor KB Agarwal vs State of Rajasthan and Ors.)
    • A bench of Acting Chief Justice Manindra Mohan Shrivastava and Justice Vinod Kumar Bharwani stated that it is reasonable for universities in specific fields such as health science, technical and agricultural, to have vice-chancellors with expertise in their respective fields.
    • the Court said, If a health science university is to be manned, the vice-chancellor of that university has to be from the field of medical science, the vice chancellor of a technical university is an expert in technical education, the vice-chancellor of an agricultural University is an expert of that specific field, it does not stand to logic and reasoning that the vice-chancellor a law university need not be a distinguished academician in the field of legal education.
    • it directed, In order to save the constitutionality of the provision, the eligibility criteria as contained in Section 11(2) of the Act of 2019 is read down to mean that no person shall be eligible to be appointed as Vice-Chancellor unless he is a distinguished academician in the field of legal education with other experiences also in the field of legal education and/or research in the field of legal education.
  12. On Thursday the High Court of Jammu & Kashmir and Ladakh said while allowing a plea by former health minister Shabir Ahmed Khan seeking transfer of criminal proceedings against him from a court in Srinagar to a Jammu court incident of attacks on main-stream politicians and the people who do not subscribe to the separatists ideology are still taking place in Kashmir Valley.  (Shabir Ahmed Khan V/s State of J&K and anr.)
    • Single-judge Justice Sanjay Dhar said that the apprehension of the petitioner that he will not receive a fair trial in the case at Srinagar, appeared to be well founded.
    • the Court said, it is a fact of common knowledge that incidents of attacks on main-stream politicians and the people who do not subscribe to the separatist’s ideology are still taking place in Kashmir valley. Therefore, it cannot be stated that apprehension expressed by the petitioner to his life at Srinagar while facing trial before the court is unfounded.
    • A first information report came to be registered against him on February 6, 2014, at Shaheed Gunj police station in Srinagar for allegedly committing the offences punishable under section 354 (outraging modesty of woman) and 509 (word, gesture or act intended to insult the modesty of a woman) of the Ranbir Penal Code (RPC). This also led to his resignation from the State health ministry.
    • The Court remains jam packed and the petitioner apprehends grave and serious bodily attack from the crowd which gathers over there upon the instigation of the separatists.
    • The Court directed parties to appear before the court of Chief Judicial Magistrate, Jammu on April 12 by which date, Chief Judicial Magistrate, Srinagar should transfer the original records of the file to the court of Chief Judicial Magistrate, Jammu.
  13. The Central government has told the Supreme Court the petition before the Supreme Court against extension of tenure Director of Enforcement Directorate (ED) Sanjay Kumar Mishra has been filed with the intention of protecting Congress leaders who are facing money laundering charges.
    • it was submitted, Investigation of such crimes requires the two investigating agencies to have robust processes and senior personnel in position for sufficiently long tenures,.
    • Justifying why the senior members in ED and CBI need to have sufficiently long tenures, the Central government stated due to the criss cross entrenchment of persons and groups involved in money laundering and anti-corruption activities, unravelling the crime and corruption nexus through the ED and CBI becomes not only complex, but also has international ramifications.
    • Mishra was first appointed as the ED Director for a two-year term in November 2018. The two-year term expired in November 2020. In May 2020, he had reached the retirement age of 60.
    • on November 13, 2020, the Central Government issued an office order stating that the President had modified the 2018 order to the effect that a time of ‘two years’ was changed to a period of ‘three years.’ This was challenged before the Supreme Court by the NGO Common Cause.
    • The Supreme Court had in a September 2021 verdict had approved the modification but ruled against granting more extensions to Mishra.
    • After the Supreme Court’s decision in 2021, the Central government brought in an ordinance amending the Central Vigilance Commission (CVC) Act, empowering itself to extend the tenure of the ED Director by up to five years.
  14. On Saturday the third issue of Delhi Commission for Protection of Child Rights’ (DCPCR) journal, “Children First Journal on Children’s Lives” was unveiled by Justice Hima Kohli of the Supreme Court, along with Justice Madan Lokur of the Supreme Court of Fiji, and Chief of Education UNICEF India, Terry Durman.
    • The third issue focuses on new challenges that have emerged over the pandemic period that could impinge on the rights of young children in terms of violence and abuse, lack of care and protection, nurturance and all-round development, as also measures to address these challenges. The theme of the third issue is “Moving On- The Pandemic & Beyond”.
    • The panel comprised distinguished speakers such as Ms. K.K. Shailaja, Former Health Minister of the State of Kerala, Dr. Tarun Seem, Medico Civil Servant/Former Health Secretary of the Government of Delhi, Dr. Vandana Prasad, a renowned Paediatrician & Public Health Expert/Former Member of NCPCR, Dr Purnima Menon, a Senior Research Fellow at the International Food Policy Research Institute in Delhi, and Dr. Chandrakant Lahariya, a renowned Public Health Expert & Former Health Specialist at the World Health Organisation.
    • the Journal’s third issue showcases eleven paintings and nine articles written by children from Assam to Maharashtra. The Commission received 2500 entries of paintings and writings from children across the country, with nearly nineteen of them featured in the journal.
    • The third issue of the Journal presents a comprehensive analysis of various aspects of children’s lives, including their psycho-social health, nutrition, and the impact of abuse on them. The importance of access to early childhood education, life skills, and literature is also highlighted. The research covers different parts of the country, with submissions received from twenty states, such as Assam, Rajasthan, the National Capital Region, Bengaluru, Uttar Pradesh, and Odisha.
  15. On Sunday Chief Justice of India DY Chandrachud said that the sheer amount of litigation in courts surrounding the National Eligibility cum Entrance Test (NEET) is evidence that there is a need for reform in medical education in the country.
    • The CJI was delivering the 19th Sir Ganga Ram Oration on the topic “A prescription for Justice: Quest for fairness and equity in healthcare“.
    • he said, Often, courts cannot enter policy domain and it is the duty of the state to listen to the representations made by the students. However, whenever injustice is done, it becomes our bounden duty to intervene. The sheer volume of litigation of NEET cases is indicative of the hopes and aspirations of millions of students. It is proof that medicine is one of the most sought-after professions in India. Yet, the litigation is also symbolic of the need for reforms in medical education in India.
    • he said, Testifying in judicial proceedings often ends up being a time-consuming exercise, hampering a medical professional’s duty. As the Chairperson of the Supreme Court’s E-Committee, it is my endeavour to equip all courts in India with a video conferencing remote point to facilitate tele-evidence for doctors. This would result in saving time of doctors which could be utilized for patient care, medical education and research.
    • At a more fundamental level, principles of justice underlie the practice of both law and medicine. Both these fields are concerned with fairness, equality, and the well-being of individuals and communities. In the legal field, justice requires rule of law, where people are treated impartially and fairly, as opposed to arbitrariness or rule of any individual. In the field of health, justice requires that healthcare services and resources be distributed fairly and equitably.
    • Within India, outbreaks of dengue, chikungunya, malaria are common place among the urban poor. Unplanned and uncontrolled urbanisation, which pays scant regard to water drainage and sanitation, has led to the growth of urban slums where infectious diseases outbreaks are quite common.
    • he said, Just like every doctor present here must have prescribed “plenty of rest” to their patients, I hereby order everyone gathered here today to pause, take a break and cultivate a ‘rest ethic’ in your professional lives. Caring for ourselves and providing the space for our juniors to self-care is a sign of strength. It is my hope that we are able to make those much needed structural and institutional changes to implement this unenforceable order.
  16. The Aurangabad bench of the Bombay High Court held that merely because a sarpanch of a village has not performed his statutory duties, he cannot be disqualified from the post.  (Manohar Dnyaneshwar Pote vs The Collector, Jalna)
    • Single-judge Justice Arun Pednekar granted a relief to one Manohar Dnyaneshwar Pote, who was disqualified by the Collector by an order passed on September 8, 2022 on the ground that he failed to conduct four meetings in a financial year as mandated under the Maharashtra Village Panchayats Act, 1958.
    • the judge said, Mere non-performance of the statutory duty would not disqualify the elected member unless he is not able to give a good reason for non-performing of the statutory duty. Thus, non-performance of statutory duty does not lead to automatic disqualification.
    • the bench opined, The Act does not contemplate holding of meetings in a particular way. The requirement of law is that in the financial year there has to be at least four meetings of the Gram Sabha and that gap in between meetings should not be more than 4 months. Even otherwise excluding period of covid-19 whereby the State had directed not to hold the meetings of Gram Sabha and that the various prohibitory orders are passed under Section 144 of CrPC, placing restrictions on holding meetings up to June 15, 2021, the petitioner has complied with the provision of holding of Gram Sabha meetings as contemplated in the Act.

Legal Prudent Fraternity