Wednesday, 29th November 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 – XVI SPECIAL PROVISIONS RELATING TO CERTAIN CLASSES

Article – 338A National Commission for Scheduled Tribes.

  1. There shall be a Commission for the Scheduled Tribes to be known as the National Commission for the Scheduled Tribes.
  2. Subject to the provisions of any law made in this behalf by Parliament, the Commission shall consist of a Chairperson, Vice-Chairperson and three other Members and the conditions of service and tenure of office of the Chairperson, Vice-Chairperson and other Members so appointed shall be such as the President by rule determine.
  3. The Chairperson, Vice-Chairperson and other Members of the Commission shall be appointed by the
    President by warrant under his hand and seal.
  4. The Commission shall have the power to regulate its own procedure.
  5. It shall be the duty of the Commission—
    • (a) to investigate and monitor all matters relating to the safeguards provided for the Scheduled Tribes under this Constitution or under any other law for the time being in force or under any order of the Government and to evaluate the working of such safeguards.
    • (b) to inquire into specific complaints with respect to the deprivation of rights and safeguards of the Scheduled Tribes;
    • (c) to participate and advise on the planning process of socio-economic development of the Scheduled Tribes and to evaluate the progress of their development under the Union and any State;
    • (d) to present to the President, annually and at such other times as the Commission may deem fit, reports upon the working of those safeguards.
    • (e) to make in such reports recommendations as to the measures that should be taken by the Union or any State for the effective implementation of those safeguards and other measures for the protection, welfare and socio-economic development of the Scheduled Tribes; and
    • (f) to discharge such other functions in relation to the protection, welfare and development and advancement of the Scheduled Tribes as the President may, subject to the provisions of any law made by Parliament, by rule specify.
  6. The President shall cause all such reports to be laid before each House of Parliament along with a memorandum explaining the action taken or proposed to be taken on the recommendations relating to the Union and the reasons for the non-acceptance, if any, of any of such recommendations.
  7. Where any such report, or any part thereof, relates to any matter with which any State Government is concerned, a copy of such report shall be forwarded to the Governor of the State who shall cause it to be laid before the Legislature of the State along with a memorandum explaining the action taken or proposed to be taken on the recommendations relating to the State and the reasons for the non-acceptance, if any, of any of such recommendations.
  8. The Commission shall, while investigating any matter referred to in sub-clause (a) or inquiring into any complaint referred to in sub-clause (b) of clause (5), have all the powers of a civil court trying a suit and in particular in respect of the following matters, namely: —
    • (a) summoning and enforcing the attendance of any person from any part of India and examining him on oath;
    • (b) requiring the discovery and production of any Document;
    • (c) receiving evidence on affidavits.
    • (d) requisitioning any public record or copy thereof from any court or office.
    • (e) issuing commissions for the examination of witnesses and documents.
    • (f) any other matter which the President may, by rule, determine.
  9. The Union and every State Government shall consult the Commission on all major policy matters affecting Scheduled Tribes.

Today’s Legal Updates: 

  1. On Wednesday the Supreme Court ruled that for a money-laundering case to be initiated on allegations of a criminal conspiracy, the conspiracy has to be linked with a money-laundering offence already included in the scheduled offences under the Prevention of Money Laundering Act (PMLA). (Pavana Dibbur vs Directorate of Enforcement)
    • A bench of Justices Abhay S Oka and Pankaj Mithal held that allowing criminal conspiracy to be a scheduled offence by itself, without any link to any money laundering offence, would render the PMLA meaningless and redundant.
    • the Court ruled, An offence punishable under Section 120­B of IPC (punishment for criminal conspiracy) will become a scheduled offence only if the conspiracy alleged is of committing an offence which is otherwise a scheduled offence. In other words, an offence punishable under Section 120-B of IPC will become a scheduled offence only if the conspiracy alleged is of committing an offence which is otherwise a scheduled offence (or a money laundering offence).
    • the bench reasoned, Every crime which may generate proceeds of crime need not be a scheduled offence. Therefore, only certain specific offences have been included in the Schedule … even if an offence registered is not a scheduled offence, the provisions of the PMLA and, in particular, Section 3 will be invoked by simply applying Section 120­B.
    • the Court held, Except for Section 120B of the IPC, no other offence in the schedule has been applied. Therefore, in this case, the scheduled offence does not exist at all. Hence, the appellant cannot be prosecuted for the offences punishable under Section 3 of the PMLA.
    • the Court reasoned, An accused in the PMLA case who comes into the picture after the scheduled offence is committed by assisting in the concealment or use of proceeds of crime need not be an accused in the scheduled offence. Such an accused can still be prosecuted under PMLA so long as the scheduled offence exists.
    • the Court held, Even if an accused shown in the complaint under the PMLA is not an accused in the scheduled offence, he will benefit from the acquittal of all the accused in the scheduled offence or discharge of all the accused in the scheduled offence. Similarly, he will get the benefit of the order of quashing the proceedings of the scheduled offence.
  2. On Wednesday the Nagpur Bench of the Bombay High Court held that presence of child-victim and her family in court is not obligatory in appeal proceedings arising from cases under the Protection of Children from Sexual Offences Act (POCSO Act).  (Rohit Bhagat v. State of Maharashtra)
    • Single-judge Justice Anil Pansare observed that sub-rule 15 of rule 4 of the POCSO Rules does not make the presence of the child and her family or the guardian obligatory for such proceedings.
    • the Court noted, What is obligatory is to apprise the child’s family or the guardian etc. of child of the stage/status of the proceeding in order to facilitate the child, through family/ guardian etc. to appear before the Court if he/she desires to do so.
    • the Court said, The experience shows that almost in all cases the child along with parents is brought to the Court. They are required to travel from remote places to attend the Court and thus are put to financial loss as well. Most of them belong to economically weaker section because in almost all cases, they seek legal aid. None of them, in my tenure so far, have shown interest to participate in the proceedings. Thus, by converting their ‘entitlement to participate’ into ‘obligation to participate’ they have been put to further sufferance and hardship.
    • the order said, As could be seen, Section 439(1A) provides that the presence of the informant or any person authorized by him, which may include child or child’s family, shall be obligatory at the time of hearing of the application for bail in respect of the offences under the IPC.
    • the single-judge said, The child/victim of the crime is required to attend the High Court because in every appeal and the application seeking suspension of sentence the notice is being issued to the child/ victim under the misnomer that the victim’s presence in the appeal and the application seeking suspension of sentence is mandatory. The experience shows that almost in all cases the child along with parents is brought to the Court.
    • the court concluded, In the application filed for suspension of sentence, the child/victim will have no role to play because the judgment along with entire evidence is before the appellate Court. The presence of the Prosecutor is sufficient to decide the application. In such circumstances, the appraisal of the status of the proceedings to the child/victim through child’s family or guardian etc. should serve the purpose and their presence should be left to their wisdom.
  3. On Wednesday the Bombay High Court refused to entertain a public interest litigation (PIL) petition seeking relocation of the air force wing located within the Pune airport premises for expansion of the airport.  (Aniruddha Deshpande v. Union of India & Ors.)
    • A division bench of Chief Justice Devendra Kumar Upadhyaya and Justice Arif Doctor observed that the location of the airport and the Indian Air Force station was the prerogative of the government and it would not be proper for courts to interfere with the same.
    • the Court said, Where to have an airport, where not to have an airport, that is something that the executive will consider. The entire subject lies in the realm of the executive. If they (executive) interfere in private laws or fundamental rights of individuals, then we can interfere. You have other forums, go and use them.
    • the bench concluded, We are not disputing the cause you are espousing. You may have a good cause, that Pune needs a bigger airport, we get that. We are only saying use the proper forum. The question foremost is whether this should lie before the court, we grant you liberty to pursue your remedy on the administrative side.
  4. On Wednesday the Gujarat High Court said that the incident of the collapse of Morbi bridge in the State was an “engineering disaster” as the authorities concerned failed to properly maintain the bridge. (Yatishbhai Govindbhai Desai vs State of Gujarat)
    • A division bench of Chief Justice Sunita Agarwal and Justice Aniruddha Mayee made the observation while hearing a public interest litigation (PIL) petition related to the poor condition of two heritage bridges in Rajkot district. 
    • Chief Justice Agarwal remarked, When you are repairing a heritage structure, you need to ensure that the same material is used. You cannot change the material. What happened in Morbi? The old wooden planks were changed with Aluminum. What happened in Morbi was nothing but an engineering disaster.
    • the bench said while adjourning the hearing, The R&B department would not have any conservation architect, who is needed to carry out repairs in heritage structures. You need to submit a report from experts in the field on how to carry out the repairs what material will be needed etc. Place it before us and even we will have one report from our valuers and experts on the issue.
  5. Recently the Supreme Court took serious note of an allegation that a senior police officer had created a fake WhatsApp profile of a former Patna High Court Chief Justice (now a top court judge) to obtain undue benefits. (Aditya Kumar v. The State of Bihar & Anr)
    • The Bench of Justices Aniruddha BoseAhsanuddin Amanullah and Augustine George Masih opined that this larger issue cannot be left unattended, while dismissing an anticipatory bail plea by Aditya Kumar, the Indian Police Service (IPS) officer in question.
    • the order stated, This Court will certainly not shut its eyes to the materials unearthed, since it relates not only to maintaining purity in judicial proceedings, but upholding public faith in the system at large. We are of the firm view that further directions are necessitated.
    • the Supreme Court order said, The Registrar General, Patna High Court is directed to submit, in a sealed cover, complete details of what action the High Court has taken, along with copies of relevant documents, pursuant to the reference made to ‘Hon’ble the Chief Justice for taking appropriate decision on the administrative side’ apropos all such facts which have been noted in the Impugned Judgment.
    • the order said, This Court is of the opinion that the petitioner is not entitled to the benefit of anticipatory bail, majorly on account of the seriousness and gravity of the alleged offences and apparent non-cooperation.
  6. On Wednesday the Karnataka High Court allowed Deputy Chief Minister DK Shivakumar to withdraw an appeal challenging a Central Bureau of Investigation (CBI) probe against him in a corruption case, considering that the (now) Congress-led State government recently withdrew consent for the CBI probe.
    • A bench of Chief Justice PB Varale and Justice Krishna S Dixit took note of Shivakumar’s submission that the writ appeal was now infructuous since the matter rested on the State’s sanction for a CBI probe which has now been withdrawn.
    • Chief Justice Varale asked, We accept there is a rule of continuity of the government. If one policy is accepted by the government, it is possible that there will be change in the government. There may be A party holding power, and B party may come to power later.. But if this change (in policy) is effected every time, will it not affect the rule of the continuity of governance?
    • the counsel argued, My opposition is to consent order, which is tailor-made to scuttle the investigation … State acting like this is a serious concern. The appellant (Shivakumar) is not an ordinary man.
    • Justice Dixit explained, The things that are happening may not be that pleasant to us also. But law does not dependent on what judge is feeling or comfortable, etc. We have to do things according to law.
    • Senior Advocate Sibal said, If I may be permitted to say, with your lordships’ vast experience, and my somewhat limited experience in politics, we know when matters, how they are referred to CBI, why and when they are withdrawn. There are two sides to the coin – one side need not be clean, the other need also not be clean.
    • the bench added orally, in response to a submission by BJP MLA Yatnal, We are not asking why State is acting like this, it is not in our domain.
  7. On Wednesday Tamil Nadu’s Directorate of Vigilance and Anti-Corruption (DVAC) objected to the listing of a case before a Bench headed by Justice Bela M Trivedi on the ground that it was earlier listed before the Bench led by Justice Aniruddha Bose.  (The Director of Vigilance and Anti-Corruption v. Edappadi Palaniswamy and Anr)
    • Senior Advocate Dushyant Dave, representing the DVAC, submitted before a Bench of Justice Trivedi and Justice Satish Chandra Sharma, It is wrong that matters before Justice Aniruddha Bose are being listed here.
    • You are aware of the accepted and healthy practice followed by this Hon’ble Court for decades in this regard which would also command that the matter be listed before the bench presided by the Senior Judge only and it would not be proper to be listed before the other Ld. Judge when the Senior Judge is available.
    • the Bench asked Dave to move an application before the Registrar (Listing) for listing it before Justice Bose’s bench, subject to orders from Chief Justice of India DY Chandrachud.
    • In its Special Leave Petition, DVAC has challenged the dismissal of a petition filed in 2018 by Dravida Munnetra Kazhagam (DMK) member RS Bharathi seeking a probe against former Tamil Nadu Chief Minister Edappadi K Palaniswami (EPS).
    • The High Court had noted that the DVAC had already given a clean chit to EPS in 2018 and, therefore, there was no reason to order a fresh probe merely because there had been a change in the regime in the State in 2021.
  8. On Wednesday the Supreme Court adjourned the hearing in the bail plea filed by activist Umar Khalid in connection with the Delhi Riots conspiracy case due to non-availability of counsel on both sides.  (Umar Khalid v. State of NCT of Delhi)
    • A Bench of Justices Bela M Trivedi and Satish Chandra Sharma adjourned the hearing to after Senior Advocate Kapil Sibal representing Khalid as well as Additional Solicitor General SV Raju for the Delhi Police were unavailable.
    • He was arrested by the Delhi Police in September 2020 and charged with criminal conspiracy, rioting, unlawful assembly as well as several other offences under the Unlawful Activities (Prevention) Act (UAPA).
  9. On Wednesday the Supreme Court said that it will consider laying down guidelines on when a Governor of a State can send bills passed by the State legislature to the President.  (State of Kerala and anr vs Hon’ble Governor for State of Kerala and ors)
    • This was after Senior Counsel and former Attorney General KK Venugopal highlighted that Kerala Governor Arif Mohammad Khan had forwarded seven bills passed by State legislature to the President.
    • the Court initially said in its order, The prayer for guidelines will not strictly arise in the frame of petitions as it stands now.
    • Venugopal said, The Governor instead of working with the assembly he is acting as an adversary.
    • the Court demanded, There is some substance in what is being argued. What was the Governor doing for two years by sitting on the bills.
    • the AG said, I do not wish to go into this as it will open up a lot of things.
    • the Court said, We will get into it very much… There is accountability by the Governor and it is about our accountability to the constitution and the people ask us about it.
    • the Court stated, We have to keep the matter pending. We thought of disposing the plea.. but it will not be proper. Because then how they file another plea seeking just guidelines. This is a live issue. We have eight live bills and if we dispose this bill then we will do disservice to the petition. Let them amend the petition.
    • the Court said in its order, It was only after this plea that Governor reserved seven bills for president assent and cleared one. The fact of the matter is Governor has albeit after this petition exercised his constitutional power by granting assent to 1 and reserved seven for the president. Now Article 200 requirements stands met.
    • Venugopal said, Now seven out of eight bills sent for Presidential assent. This is just to delay the case. He can do so only if there is an inconsistency with a central law. He cannot blindly take the seven bills and send to president. There are eight other bills pending before him and it was passed in September and he is sitting on it.
    • Venugopal argued, Time has come today that this court should lay down some guidelines as to when the bills can be reserved for the presidential assent and unless this is laid down the state is suffering. A bill cannot be kept pending for two years like this. This seems adversarial. Unless this court steps in strongly the people will suffer.
    • the Court noted, We find no reason as to why the Governor decided to keep the bills pending for an inordinate period of time. We have held that power of Governor cannot be utilised contrary to the power entrusted on the democratically elected state legislature.
    • the CJI remarked, Let us hope that some political sagacity take over the State and we hope some sagacity prevails. Otherwise we are here to lay down the law and do our duty under the Constitution.
    • the AG said, We do not want to get into all of this. There is a lot happening in the State.
    • Venugopal said, He is making a lot of insinuating statements.. State of kerala is functioning beautifully in education, infrastructure, health care.. these are serious statements.
  10. On Wednesday Union Minister of State for Electronics and Information Technology Rajeev Chandrasekhar moved the Kerala Hgh Court to quash a hate speech case filed against him for his social media posts on the recent Kalamassery blasts.
    • The matter was heard by Justice CS Dias who ordered the State authorities not to take any coercive action against Chandrasekhar till December 14.
    • According to him, the first information report (FIR) is a result of collusion between political adversaries. He also raised concerns about discrepancies in the notice and alleged harassment.
    • At least 3 persons were killed and 51 persons injured – some of whom are reportedly in critical condition – in the blasts that that occurred at a convention centre in Kalamassery, a suburb of Ernakulam, on 29th October.
    • The blasts were set off during a meeting of Jehovah’s Witnesses. A few hours after the blasts, one Dominic Martin surrendered to the police for carrying out the attack.
  11. Thomson Reuters is set to launch a book entitled Damages, Expert Evidence, and Valuation in Commercial Disputes in India on December 3 at the Delhi High Court auditorium.
    • The publication, edited by Senior Advocate Gaurav Pachnanda and Khaitan and Co Singapore Partner Kartikey Mahajan, aims to address the gaps in the jurisprudence related to the law of damages and valuation in India by providing dedicated and reliable authorities.
    • Dignitaries slated to attend the launch event include Justices Sanjay Kishan Kaul and KV Vishwanathan from the Supreme Court of India, as well as Justice Manmohan Singh, Acting Chief Justice of the Delhi High Court, and Justice Vibhu Bhakru of the Delhi High Court. The event will include remarks from these guests and concluding remarks from the editors.

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