Tuesday, 26th 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 – 358 Suspension of provisions of article 19 during emergencies.

  1. While a Proclamation of Emergency declaring that the security of India or any part of the territory thereof is threatened by war or by external aggression is in operation], nothing in article 19 shall restrict the power of the State as defined in Part III to make any law or to take any executive action which the State would but for the provisions contained in that Part be competent to make or to take, but any law so made shall, to the extent of the incompetency, cease to have effect as soon as the Proclamation ceases to operate, except as respects things done or omitted to be done before the law so ceases to have effect:
    Provided that where such Proclamation of Emergency is in operation only in any part of the territory of India, any such law may be made, or any such executive action may be taken, under this article in relation to or in any State or Union territory in which or in any part of which the Proclamation of Emergency is not in operation, if and in so far as the security of India or any part of the territory thereof is threatened by activities in or in relation to the part of the territory of India in which the Proclamation of Emergency is in operation.
  2. Nothing in clause (1) shall apply—
    1. to any law which does not contain a recital to the effect that such law is in relation to the Proclamation of Emergency in operation when it is made; or
    2. to any executive action taken otherwise than under a law containing such a recital.

Today’s Legal Updates: 

  1. On Tuesday the President of India Droupadi Murmu has nominated Justice Sanjiv Khanna of the Supreme Court as Executive Chairperson of the National Legal Services Authority (NALSA).
    • The Chief Justice of India is the NALSA’s Patron-in-Chief, according to the Legal Services Authority Act of 1987. The President of India, in collaboration with the Chief Justice of India, appoints an active or retired Supreme Court judge as Executive Chairman.
    • the post of Executive Chairman of NALSA is occupied by the second senior-most judge of the Supreme Court. It was previously held by Justice Sanjay Kishan Kaul, who demitted office on December 25.
  2. Recently the Delhi High Court rejected a plea by filmmaker Bikramjeet Singh Bhullar seeking an interim order to stop the streaming or broadcasting of the Ranbir Kapoor starrer movie Shamshera on Over-The-Top (OTT) platforms.  (Bikramjeet Singh Bhullar v Yash Raj Films & Ors)
    • Justice Jyoti Singh rejected the plea after noting that Bhullar had sought to claim a monopoly over themes such as a period drama, a father-son story where the two look alike, use of children, birds, hot oil, horse, underground tunnel and a plot based on the son’s revenge and rebellion against a foreign invasion.
    • the Court held, Plaintiff (Bhullar) has been unable to make out a prima facie case of copyright infringement and thus no relief can be granted in favour of the Plaintiff injuncting the Defendants from continuing with the telecast of their film on the OTT Platforms.
    • the Court observed, Comparison of locations set in North India, as rightly contended by the Defendants, cannot be a ground to hold infringement of copyright and similarly features such as burning oil, water, birds, star for the purpose of navigation, secret underwater tunnels horses, ghaghra and its unswirling, sensuous scenes etc., have been used in movies from times immemorial and very many movies come to mind on this aspect readily and are hackneyed subjects of almost every fiction and matters of common grasp. There is no uniqueness in these ideas or expression and in the words of the judgements of this Court, almost every author of a fiction would conjure them as consequential concomitant effects, as a matter of common grasp and “Scenes a Faire” which carry no copyright.
    • the Court further noted, As rightly contended on behalf of the Defendants, character of Shamsher Singh in the script is not the theme on which the story revolves, which is really about the resistance of Kartar to the invasions of Afghans. He does not carry forward his father’s legacy though in one of the plots a treaty is signed between the British and Shamshera for which Khameran had to pay the price of freedom. Character of the father is an important part of the movie, while in the script it is not very pronounced or significant.
    • The Court concluded that no prima facie case was made out in favour of Bhullar, that no irreparable loss would be caused to him if no injunction was granted and that the balance of convenience was also in favour of Yash Raj.
  3. On Monday the three bills to overhaul India’s criminal justice system received the assent of the President of India.
    • The development has been notified on the website of the Rashtrapati Bhavan. It is yet to be published in the Gazette of India.
    • The Bharatiya Nyaya Sanhita, the Bharatiya Nagarik Suraksha Sanhita and the Bharatiya Sakshya Adhiniyam will replace the Indian Penal Code (IPC), the Code of Criminal Procedure (CrPC) and the Indian Evidence Act.
    • They were passed by the Lok Sabha on December 20 before being passed by the Rajya Sabha on December 21.
  4. Recently the Karnataka High Court quashed a case alleging house trespass and criminal intimidation initiated by a woman against her ex-husband for attempting to visit their eight-year-old daughter by posing as a guard of a garbage van.
    • Justice M Nagaprasanna observed that the man had a right in law by a court order to visit his daughter and that his former wife had filed the case for trivial reasons.
    • the Court observed, the husband had valid visitation right on the day that he wanted to visit the daughter. Therefore, he had a right in law by an order of the competent Court, to visit the daughter.
    • the Court remarked, This is the anxiety of the father to meet the daughter. This is dubbed by the wife to be a criminal trespass into the house with a criminal intent to intimidate the daughter.
    • it observed, Where from the husband has criminally intimated the daughter is again ununderstandable … If any further investigation is permitted to continue, it would become, on the face of it, an abuse of the process of law and misuse of the provisions of law by the wife against the husband to settle her scores.
    • the Court, exercising its jurisdiction under Section 482 (saving of inherent powers of High Court) of the Code of Criminal Procedure (CrPC), quashed the proceedings against the petitioner.
  5. Recently the Delhi High Court held Federalism is a part of the basic structure of the Indian Constitution and it will not be diluted merely because the expression ‘Central Government’ is used and not ‘Union Government. (Atmaram Saraogi v Union of India)
    • A division bench of Acting Chief Justice Manmohan and Justice Mini Pushkarna rejected the contention that the use of the expression “Central Government” gives the wrong impression that State governments are subordinate to the Union government.
    • the Court held, The contention of the petitioner that use of the expression ‘Central Government’ gives the wrong impression that State governments are subordinate to the Union Government, is totally unacceptable. The Federal structure of the Constitution of our country is one of the essential and basic features of the Constitution. Federalism, which is the basic structure of our Constitution, cannot be said to be diluted or violated in any manner by use of the expression ‘Central government.’ Basic structure of our Constitution is the foundation on which the governance of our country is rooted.
    • the plea stated, Article 1 of the Constitution of India used the words ‘The Union and its Territory’ and states that ‘India, that is Bharat, shall be a Union of States.’ Interestingly, the terms ‘Centre’ or ‘Central Government’ have consciously not been used in any of the 395 articles divided in 22 parts and/or in eight schedules of the Constitution of India.
    • the Court said, Accordingly, it is manifest that the Constitution itself has used various expressions to indicate the Government which is the Government of the country viz. the Union of India, the Central Government or the Government of India. This fact becomes all the more clear by reference to Article 300 of the Constitution which categorically states that ‘Government of India’ may sue or be sued by the name of Union of India… Reading of Article 300 of the Constitution clearly demonstrates that it is the ‘Government of India’ which is being referred to as the ‘Union of India.
    • the Court added, It may also be noted that the expression ‘Central Government’, ‘Union of India’ as well as ‘Government of India’ have been used vastly in various statutes and connote the Government of the country in interchangeable expressions. Thus, when the Constitution as well as other Statutes have applied various expressions to connote the Government of the country, this Court will not enter into the arena of legislation, which is not within the domain of this Court.
  6. Recently the Delhi High Court held that a spouse unilaterally withdrawing from a mutually agreed divorce settlement agreement amounts to mental cruelty.
    • A division bench of Justices Suresh Kumar Kait and Neena Bansal Krishna referred to judgments of the Supreme Court and various High Courts to stress that when a divorce by mutual consent is agreed upon by the spouses, a unilateral withdrawal of consent by one spouse without any just cause adds to the cruelty meted out to the other spouse.
    • the Court held, thus, such conduct of the appellant/wife in driving the respondent to believe that their disputes were about to be put to an end and then to withdraw from the attempted settlement can cause disquiet, cruelty, and uncertainty in the mind of the respondent (husband). It is evident that the fight inter se the parties was not on any justifiable grounds, but was a war between the egos prompted by the desire to wreak vengeance against the spouse. Such unilateral withdrawal from divorce by mutual consent thus, amounted to cruelty.
    • the Court went on to hold, In view of the foregoing discussions, we conclude that there is no infirmity in the Judgment dated 20.03.2017 of the learned Principal Judge granting divorce on the ground of cruelty to the respondent/husband under Section 13(1)(ia) of Hindu Marriage Act, 1955.
  7. Recently the Delhi High Court rejected a plea filed by TV Today Network (which runs news channels Aaj Tak and India Today) against a Central government order directing the media network to run apology scrolls for displaying advertisements of liquor brands on its news channels.  (TV Today Network Limited v Union of India & Anr)
    • Justice Subramonium Prasad rejected the plea on noting that TV Today had violated Rule 7 (Advertising Code) of the Cable Television Networks Rules, 1994 by displaying the logo of ‘100 Pipers’ while displaying an advertisement for 100 Pipers Music CDs.
    • the Court observed, The display of the logo of ‘100 Pipers’ would thus appear to be in contravention of that Rule. Since the provisions of Rule 7 has not been complied with, the contention of the learned Counsel for the Petitioner that they had proceeded in good faith on the basis of the CBFC [Central Board of Film Certification] certificate which was submitted by the advertiser cannot be accepted as the Rules do not permit the broadcaster to independently ascertain the veracity of the clip that is provided by the advertiser.
    • the High Court concluded, In view of the above, this Court is not inclined to interfere with the Orders dated 14.06.2022, passed by the Competent Authority, Ministry of Information & Broadcasting.
  8. Recently the Karnataka High Court held while imposing ₹10,000 as costs on a man for filing a divorce petition with such allegations Unsubstantiated allegations by a husband accusing his wife of adultery and doubting the paternity of their child amount to mental cruelty.
    • The division bench of Justices KS Mudagal and KV Aravind also opined that such conduct constitutes sufficient cause for the wife to withdraw from her husband.
    • the Court said the unsubstantiated allegations of the husband relating to adultery of wife, suspicion on the character of wife, doubting the paternity of the child compelling the wife and son to undergo DNA test amount to the petitioner self-inflicting mental cruelty to wife.
    • the Court said, It is natural that a married woman visiting her parents’ house once in three months to inquire the well being of her parents, siblings and other family members. This is normal practice in all families.
    • it said, Also in view of the demands made by the petitioner for dowry, visit of the respondent to her parents’ house once in three months cannot be faulted.
    • the Court added, Unless the partner alleging cruelty establishes the same, irretrievable breakdown of marriage is not a ground for granting divorce.
    • the Court opined, On overall appreciation of the evidence on record, we are of the view that it is the petitioner (husband) who caused mental cruelty to his wife and by abusing the process of law filed the petition seeking divorce alleging cruelty. Therefore his conduct warrants imposition of heavy costs.
  9. Recently the Gujarat High Court upheld the dismissal of a magistrate who went on unauthorised leave after sending an “intemperate” letter to an administrative judge of the High Court and the principal district judge of Vadodara in 2013.  (Nileshbhai Chauhan v. Registrar General)
    • A Bench of Justices Biren Vaishnav and Nisha Thakore opined, Viewing unauthorised absence of an ordinary employees may perceive a different perception. Similar standards cannot and should not be applied in case if Judicial Officer, who abandoned his service in defiance by addressing a letter that unless a particular issue is not resolved he shall not report to his work.
    • the Court said, Obviously, a judicial officer may be justified in venting his anguish against the system but in doing so the language used in the letter would indicate that he roped in the administrative judge of the High Court and the District Judge in saying that these elements were encouraging and co-operating in bringing such a systematic decline.

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