Today’s Legal Updates

Tuesday, 28th March 2023

Legal Awareness: – CONSTITUTION OF INDIA

Part – Vl THE STATES

CHAPTER- V THE HIGH COURTS IN THE STATES

Article – 222 Transfer of a Judge from one High Court to another.

  1. The President may, after consultation with the Chief Justice of India, transfer a Judge from one High Court to any other High Court.
  2. When a Judge has been or is so transferred, he shall, during the period he serves, after the commencement of the Constitution (Fifteenth Amendment) Act, 1963, as a Judge of the other High Court, be entitled to receive in addition to his salary such compensatory allowance as may be determined by Parliament by law and, until so determined, such compensatory allowance as the President may by order fix.

Today’s Legal Updates: 

  1. The National Company Law Appellate Tribunal (NCALT) will pronounce its judgment tomorrow on Google’s appeal against the Competition Commission of India (CCI) order imposing a penalty ₹1,337 crore on the tech giant for allegedly misusing its dominant position in the Android ecosystem.
    • The judgment will be pronounced by a bench of NCLAT Chairperson Justice Ashok Bhushan and Dr Alok Srivastava, Member (Technical) at 2 PM
    • it had held, By virtue of the agreements discussed above, Google ensured that users continue to use its search services on mobile devices which facilitated un-interrupted growth of advertisement revenue for Google.
    • The Commission examined various practices of Google in relation to licensing of the Android mobile operating system and several of its mobile applications such as the Play Store, Google Search, Google Chrome, YouTube etc.
  2. The Supreme Court dismissed review petitions against its November 2022 judgment acquitting the three death-row convicts in the 2012 Chhawla gangrape and murder case. (State of NCT of Delhi, Ministry of Home Affairs vs Rahul and ors)
    • A bench of Chief Justice of India DY Chandrachud and Justices S Ravindra Bhat and Bela M Trivedi noted that none of the pleas in the batch of review petitions had pointed to any error apparent on the face of the record which is the ground on which a review of the top court’s judgment can be sought.
    • the Court said, After having considered the judgment and other documents on record, we do not find any error either factual or legal, apparent on the face of record requiring review of the aforestated judgment passed by this Court.
    • the Court made it clear, Even if an event, which has no nexus to the instant case had taken place subsequent to the pronouncement of the judgment that would not be a ground to entertain the review petitions.
  3. On Monday the Saket court Delhi ordered the registration of a First Information Report (FIR) against Veer Singh, son of Founder and Chairman of the Max Group conglomerate Analjit Singh, for performing an alleged sham marriage ceremony with a woman to induce her to establish sexual relations with him. (Ms A v. State of NCT of Delhi)
    • Special Judge Arul Verma of the Saket Court set aside an order of the metropolitan magistrate while stating that such an affront to a woman’s dignity cannot be brushed under the carpet. 
    • the judge said, To ignore the above narrated alleged conduct of the respondent, would be akin to giving a license to licentious men to break the law, and exploit autonomy of a woman with brazen impunity.
    • the order stated, Such a ceremony is bound to induce the revisionist to believe that a lawful marriage was entered into and on this basis she agreed to cohabit and have sexual intercourse with Veer Singh.
  4. On Tuesday the Supreme Court held Lack of criminal antecedents of a convict is not the sole criterion to decide whether the case falls under the rarest of rare category. (Shiva Kumar @ Shiva @ Shivamurthy vs State of Karnataka)
    • A bench of Justices Abhay S Oka and Rajesh Bindal said that in cases involving death sentence, several others factors have to be considered and showing undue leniency in brutal offences will negatively impact the confidence of public in the legal system.
    • the bench held, That the accused has no antecedents, is no consideration by itself for deciding whether the accused will fall in the category of the ‘rarest of the rare’ cases. It all depends on several factors … The Court, while considering the possibility of reformation of the accused, must note that showing undue leniency in such a brutal case will adversely affect the public confidence in the efficacy of the legal system. The Court must consider the rights of the victim as well.
    • the Court said, When a Constitutional Court finds that though a case is not falling in the category of ‘rarest of the rare’ case, considering the gravity and nature of the offence and all other relevant factors, it can always impose a fixed­-term sentence so that the benefit of statutory remission, etc. is not available to the accused.
    • In many leading cities, IT hubs have been established. In fact, Bengaluru is known as the Silicon Valley of India. Some of these companies have customers abroad and that is why the company staff members work at night. A large number of staff members in such companies are women.
    • the bench concluded, This is one case where a Constitutional Court must exercise the power of imposing a special category of modified punishment … we are of the opinion that this is a case where a fixed ­term sentence for a period of thirty years must be imposed.
  5. On Tuesday the Delhi High Court held that the December 2019 protests organised at Delhi’s Jamia Millia Islamia was an unlawful assembly and the mob gathered at the spot with the intention to violate the law.  (State v Mohd Qasim and Ors)
    • Justice Swarana Kanta Sharma said that the mob indulged in violent acts and wanted to march to the curfew bound area around the parliament.
    • Justice Sharma charged Sharjeel Imam, Safoora Zargar, Mohd Qasim, Mahmood Anwar, Shahzar Raza, Umair Ahmed, Mohd Bilal Nadeem and Chanda Yadav under Sections 143 (unlawful assembly), 147 (rioting), 149 (every member of unlawful assembly guilty of offence commit­ted in prosecution of common object), 186 (obstructing public servant), 353 (assault or criminal force to deter public servant), 427 (mischief) of the Indian Penal Code, as well as Section 3 of the Prevention of Damage to Public Properties Act.
    • the Court said, The video clips of the incident tendered by the State to this Court, and also filed before the learned trial court, will reveal that an uncontrollable mob allegedly of students who had turned violent and had dandas in their hands, were pelting stones continuously, were pushing and pulling barricades, climbing barricades, were forcibly trying to go beyond the barricades which had been put up by the police to enforce rule of law, had pulled out and damaged the iron grill which was the road divider had pulled out and damaged the sign board of Police Station Jamia Nagar and the conscious presence and participation of the accused therein would point out towards their being part of unlawful assembly and rioting.
    • the Court said, It (the mob) continued occupying the college campus gates and outside of it while continuing to pelt stones, bottles and tubes as one can hear in the announcements made through loud-hailer indicate that it was not a peaceful assembly to attract protection under the Constitution.
    • the Court further said, If no timely action was taken and the police force would have allowed the public property being put on fire and rioters being allowed to flout orders of Section 144 Cr.P.C. and reach the place where curfew had been imposed, the State would have been accused of dysfunctional and ineffective Government machinery who could not control eruption of violent collective action. The videos will prima facie reveal that the level of opposition which was encountered by the law and enforcing agency was probably not expected by them.
    • the Court noted, The public safety concerns had arisen at the spot due to presence of large number of violent protesters and their conduct which had created a significant and imminent danger of injury to bystanders, media persons, public authorities, passersby and damage of public and private property… It was the behaviour of the crowd which gave rise to such apprehension, therefore, the argument that the protest was peaceful and is not covered under Section 141 IPC is a claim belied by the video clips and statements of the witnesses.
    • At this stage it would not have been clear to the learned trial court itself also as to whether it was the peaceful dissent suppressed by the State or State was trying to curb the menace of violence and spreading of violence and disturbance in the area concerned and working to protect others from violent protesters and ensure rule of law to those who were not part of this violent protest.
    • the Court concluded, It is, however, clarified that this Court has not returned any finding on the merits of the case and the observations made hereinabove are only for the purpose of deciding present petition.
  6. On Tuesday the Bombay High Court ruled that making allegations against one’s spouse in a newspaper, whether defamatory or not, would lower the spouse’s reputation.  (XYZ vs ABC)
    • Justices RD Dhanuka and MM Sathaye observed that whether or not the actual news is defamatory is irrelevant as allegations and accusations themselves have the effect of lowering ones reputation, and that the consequential embarrassment is a bitter bonus.
    • the Court said, Whether the actual news is defamatory or not is irrelevant for the present purpose. The fact that allegations and accusations are leveled by a party (husband in this case) against the spouse (wife) in newspaper, itself has an effect of lowering her reputation in the eyes of her peers and colleagues. Embarrassment is a bitter bonus!
    • the Court said, In our considered view, a partner in matrimonial relationship who goes to the extent of filing police complaints against mother, friend, well wishers, Prosecutor or Advocate of his own wife, is a kind of person who is difficult to deal with and certainly causing mental harassment.
    • the Court said, In the overall facts and circumstances of this case, we find that owing to the bitterness that parties have already gathered for each other, it is not possible to reconcile the situation and the bond has been broken irretrievably. The overall conduct of the Appellant/husband, as narrated above, in our considered view, amounts to mental cruelty. Therefore, we find no fault with the decree of divorce granted by the Trial Court to the Respondent / Wife on the ground of cruelty.
  7. On Monday the Supreme Court directed authorities to halt the demolition of shelter home at Geeta Ghat and also ordered that no temporary shelter home in Delhi be demolished without the apex court’s prior approval.  (ER Kumar and anr vs Union of India and ors)
    • A bench of Justices S Ravindra Bhat and Dipankar Datta issued directions to the Delhi Police, the Delhi Development Authority and concerned Delhi government authorities in this regard while hearing a matter regarding demolition of night-shelters.
    • the bench directed, It is pointed out that there are three temporary shelters at Geeta Ghat which caters to homeless of special needs such as with TB, orthopaedic and mental health condition. The Delhi Police and the DDA and all other authorities in GNTCD are directed to not demolish any of the three temporary shelter homes in Geeta Ghat and any other temporary shelter without approaching this court.
    • he submitted, The Delhi government shows these to foreigners saying look at these shelters homes; And now you demolish them.
    • DUSIB counsel responded, We are alive to our duties and responsibilities.
  8. This Month Chief Justice of India DY Chandrachud has invited Chairman of the Madhya Pradesh State Bar Council Prem Singh Bhadouria to discuss concerns surrounding the State-wide lawyers’ strikes called for by the body.
  9. On Tuesday the Central government has decided to give them one chance to clear the MBBS final examinations without enrolling in any Indian medical colleges in what could be a major relief to medical students who were forced to return mid-way through their MBBS courses from colleges in Ukraine and China. (Archika v National Medical Commission)
  10. On Tuesday A woman lawyer from Lakshadweep has filed a complaint before the Registrar General of the Kerala High Court alleging that Judge Anil Kumar of the Kavaratti District Court in Lakshadweep sexually assaulted her in his chambers.
  11. On Tuesday the Kerala High Court will consider pertinent questions regarding the relevance of the age of the “model” in child pornography cases. (Basil Eldhose v. State of Kerala)
    • The questions emerged while the Court was considering a criminal revision petition moved by a man who was accused of committing offences punishable under Sections 15(1) of the Protection of Children from Sexual Offences Act 2012 (POCSO Act) and Section 67-B(b) of the Information Technology Act, 2000 (IT Act).
    • To decipher the term “child pornography” as defined under the Acts, Marar has opined that a few terms are important namely:
      • visual depiction of sexually explicit conduct.
      • involving a child.
      • image indistinguishable from an actual child.
      • appear to depict a child. 
    • it has been submitted, Viewed in this perspective, it is not necessary that there need be any actual abuse of the child for the depiction of the sexual activity to constitute child pornography. Hence, the age of the child “who” or “which” (In case of digital image) is the subject matter of the visual depiction need not be brought to light by strict proof. All that is necessary is that the subject model needs to appear to depict the child.
    • The findings from this analysis are then summarised as follows:
      • There need not be any strict proof regarding the model’s age. All that is necessary is that the model appears to be a child;
      • In case where the model clearly appears to be a child, the fact can be determined by the investigating agency from their daily life experience during the course of the investigation;
      • In cases of appearances of explicit nature, during the trial, the Court can ascertain and reach a finding as to whether the model appears to be a child from its daily life experience;
      • The points (ii) and (iii) are always subject to challenge by the defence and the burden of proof shifts accordingly in consonance with Chapter VII of the Indian Evidence Act;
      • In cases where the age of the model is difficult to ascertain easily or is marginal in nature, the opinion of the experts including paediatricians and forensic experts may be relied on by the investigating agency and the Courts during investigation and trial respectively; and
      • In cases exception being pleaded as to the age of the model due to special circumstances it should be the burden of the party who pleads it to prove the existence of such special circumstances or exceptions as the case may be. 
  12. On Monday the Supreme Court dismissed a petition by NGO Lok Prahari challenging certain provisions of the Conduct Of Election Rules, 1961 which provide for open ballot system in Rajya Sabha polls.
  13. On Tuesday the Kerala High Court directed a man to withdraw a complaint filed by him against his wife who made a false claim before a family court that she is not a doctor in order to claim interim maintenance under Section 125 of the Code of Criminal Procedure (CrPC).
  14. On Tuesday the Supreme Court yet again expressed its anguish with the Bar Council of India (BCI) not being able to finalise norms for disciplinary action against lawyers who go onn strike.  (Common Cause v. Abhijat and Ors)
  15. On Tuesday the Bombay High Court said that animals like cats and dogs are territorial and mark their areas and live there permanently.  (Paromita Purthan v. BMC & Ors.)
  16. On Tuesday A Varanasi court issued notice in a revision plea seeking registration of a first information report (FIR) against Samajwadi Party (SP) President Akhilesh Yadav and All India Majlis-e-Ittehadul Muslimeen (AIMIM) chief Asaduddin Owaisi for their remarks on the ongoing Kashi Vishwanath-Gyanvapi Mosque case.
  17. On Tuesday the Delhi High Court issued summons to Uddhav Thackeray, Aaditya Thackeray and Sajay Raut on a civil defamation suit filed by Eknath Shinde faction leader Rahul Shewale for their statements against Shinde faction in relation the party symbol.
  18. The Supreme Court will hear on April 21 a plea filed by the Hindu parties to consolidate all suits concerning Gyanvapi – Kashi Vishwanath dispute which are pending before a Varanasi court.
  19. On Monday the Madhya Pradesh State Bar Council resolved to go on another two-day strike to protest against a scheme envisaged by the administration of the High Court to dispose of long-pending cases in district courts.
  20. On Tuesday the Madras High Court refused to stay the All India Anna Dravida Munnetra Kazhagam (AIADMK) General Secretary elections and rejected the interim applications filed by former Tamil Nadu deputy Chief Minister O Panneerselvam (OPS) and three other expelled AIADMK party members.
  21. On Tuesday the Delhi High Court partially set aside an order discharging Sharjeel Imam, Safoora Zargar, Asif Iqbal Tanha and eight others in a case related to the violence that took place at Jamia Millia Islamia in December 2019.
  22. On Monday Former Gujarat High Court Chief Justice Bhaskar Bhattarcharya was appointed the sole arbitrator by the Supreme Court in a contractual dispute between Saregama India Limited and Triller Incorporated.
  23. On Tuesday the Madras High Court directed the Tamil Nadu government to come up with uniform guidelines to ensure that the police comply with the mandate under Section 46(4) of the Code of Criminal Procedure (CrPC) while arresting a woman after sunset even under special circumstances.  (S Salma v The State)
  24. Last Week the Bombay High Court dismissed a petition seeking probe against former Mumbai Police Commissioner, Parambir Singh in relation to the infamous Antilia Bomb scare case and also the murder case of businessman Mansukh Hiren.  (Parshuram Sharma vs State of Maharashtra)
  25. On Monday the Madhya Pradesh High Court issued show cause notice to the chairman of the State Bar Council chairman and every elected member of the State Bar Council seeking explanation why criminal contempt of court proceedings should not be initiated against them for compelling lawyers to abstain from judicial work.

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