Saturday, 2nd 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 – XVI SPECIAL PROVISIONS RELATING TO CERTAIN CLASSES

Article – 341 Scheduled Castes.

(1) The President may with respect to any State or Union territory], and where it is a State, after consultation with the Governor thereof, by public notification, specify the castes, races or tribes or parts of or groups within castes, races or tribes which shall for the purposes of this Constitution be deemed to be Scheduled Castes in relation to that State or Union territory, as the case may be.
(2) Parliament may by law include in or exclude from the list of Scheduled Castes specified in a notification issued under clause (1) any caste, race or tribe or part of or group within any caste, race or tribe, but save as aforesaid a notification issued under the said clause shall not be varied by any subsequent notification.

Today’s Legal Updates: 

  1. On Saturday the Delhi High Court asked the Central government to inform the Court by December 4 whether the family of Nimisha Priya, a Kerala nurse on death row in Yemen, can be allowed to travel to Yemen or any neighboring country and negotiate by paying ‘blood money’ to save Priya from the gallows.
    • On the matter was taken up by Justice Manmeet Pritam Singh Arora noon after an urgent mentioning before Acting Chief Justice Manmohan.
    • The counsel appearing for Nimisha Priya’s mother, Premakumari told the Court that the family’s request to travel to Yemen had been rejected by the government on December 1 (Friday) and that her daughter’s execution could take place any time.
    • the High Court had asked the government to consider Priya’s parent’s request to travel to Yemen.
    • The counsel for Priya’s parents told the Court that they had asked the Indian government to negotiate with the victim’s family. However, because it is the government’s stand that they cannot enter into such deals, the family is left with no choice but to travel to Yemen and make efforts on their own, the parents submitted.
    • the Court clarified that travel permission will not be granted to the petitioner’s 10-year-old daughter.
  2. On Saturday the Chief Justice of India DY Chandrachud said For all citizens to feel free in a democracy, the State must side with the weaker population which may be a numerical or social minority.
    • he said, But this can only happen when democracy works towards uprooting social hierarchies and prejudices. For all citizens to feel safe in a democracy, state must side with the weaker population which may be a numerical or social minority.
    • he opined, Members of social minorities who are unlikely to be represented through electoral democracy are over-represented before the courts in constitutional cases. But certainly, judicial institutions not meant or equipped to handle all such cases.
    • However, the indignity of inequality often comes not in the form of a policy or a law but in the form of, say, exclusion from informal workplace gatherings or even social groups in school and university due to religion, caste, gender or sexual orientation. One of the biggest challenges we collectively, face is how we surmount issues of this nature, where there is no violation of a legally enforceable right in the traditional sense.
    • he added, The Constitution envisions other methods through which abuse of power can be legitimately checked. This includes debates and discussions inside and outside the legislature on crucial issues. The executive can be held accountable for its actions by Parliament inside the house, and outside by citizenry.
    • he pointed out, In diverse democracies, some opinions may be heftier, some ideas more widely acceptable. The idea lies in what the outcomes are, and deliberation enables discussion on the same…Deliberation enables and dissent nourishes democracy.
    • These postulates are upheld in two ways: first, by robust institutions that carry out democratic functions, and second, by introducing procedural guarantees which prevent seepage of bias and unfairness in the process of decision making.
  3. Recently the High Court of Jammu and Kashmir and Ladakh stayed a Jammu court order to register a First Information Report (FIR) which, among other offences, cited “adultery” as an offence, despite the Supreme Court declaring the adultery law unconstitutional in 2018.
    • Justice Wasim Sadiq Nargal opined that a prima facie case had been made out for a stay on the October 2023 order passed by a judicial magistrate in Jammu.
    • the judicial magistrate had directed the registration of an FIR for offences under Sections 120-A (criminal conspiracy), 312 (causing miscarriage), 313 (causing miscarriage without woman’s consent), 497 (adultery), 506 (punishment for criminal intimidation), and 509 (word, gesture or act intended to insult the modesty of a woman) of the Indian Penal Code.
    • The family members (petitioners) then moved a petition before the High Court to quash the magistrate’s October 2023 order. They claimed that the complaint was a false and frivolous one, and that they had been unnecessarily dragged into the criminal proceedings.
    • the Court ordered on November, Subject to objections from the other side and till next date of hearing before the Bench, the impugned order dated 27.10.2023 passed by the learned 2nd Additional Munsiff, Jammu for the commission of offence punishable under Section 156 (3) Cr.P.C in a complaint titled … along with other consequential proceedings thereof, shall remain stayed.
  4. On Friday the National Company Appellate Law Tribunal (NCLAT) at Delhi ruled that the National Financial Reporting Authority (NFRA) has retrospective powers to investigate allegations of misconduct by financial auditors.
    • A coram of Judicial Member Rakesh Kumar Jain and Technical Member Naresh Salecha added that while Institute of Chartered Accountants of India (ICAI) has concurrent disciplinary powers to deal with allegations of professional misconduct by Chartered Accountants or auditors, the NFRA has overriding and superior powers in certain respects as laid down in Section 132 (4) of the Companies Act, 2013.
    • judgment, NFRA has superior and overriding powers in matters relating to professional misconduct of the Chartered Accountants in terms of Section 132 of Companies Act, 2013 … We may conclude NFRA has been consciously and deliberately given superior authority over ICAI on oversight of auditors and in disciplinary matters as stipulated in Section 132 of Companies Act, 2013 … After taking into consideration the background for forming NFRA, the judgment of the Apex Court, proven scams, need to restore shaken confidence of public and investors at large and prevent any adverse impact on Indian economy, we hold that NFRA has clear and required retrospective jurisdiction over the alleged offences by delinquent Chartered Accountants for period prior to formation of NFRA or prior to coming into effect relevant portion of Section 132 of Companies Act, 2013.
    • the NCLAT passed a 156-page order by which it dismissed all four appeals and upheld the NFRA’s decision. In doing so, the NCLAT also arrived at the following findings:
      • 1. On the role of NFRA versus ICAI on disciplinary matters of Chartered Accountants.
        • the NCLAT held, on a careful reading of the provisions of the Companies Act, 2013 and the ICAI Act, “the NFRA has superior and overriding powers in matters relating to professional misconduct of the Chartered Accountants in terms of Section 132 of Companies Act, 2013.
      • 2. NFRA has retrospective powers
        • the NCLAT explained, Change in forum due to change in law has no bar on being implemented with retrospective effect. The litigant has vested right in action but does not have any vested right on forum. Retrospective application in such procedural law and change in forum is barred only if express provision is made in new law.
      • 3. There was no violation of natural justice simply because the NFRA investigation and adjudication was not conducted by a “division
        • The NCLAT agreed with the NFRA that there was little that the financial audit watchdog could do when the legislature has not prescribed any division. The NCLAT added that such matters cannot be allowed to be avoided only on pure technicalities.
      • 4. the branch auditor’s role is also critical to the overall audit of a company.
        • the NCLAT held, Auditors of the Branch cannot absolve his responsibilities. We cannot overlook the fact that the allegations of fraud involving Rs. 31,000 Crores by the DHFL including banking fraud of about 3,700 Crores by Directors of DHFL happened and the Auditors clearly failed in their duties.
      • 5. Standards of Auditing (SA) are mandatory and not advisory or a guidance note to auditors.
      • 5. Standards of Auditing (SA) are mandatory and not advisory or a guidance note to auditors.
    • the NCLAT held, The powers are far more and wider and any conduct which makes auditor of unbecoming of such profession will make him liable for suitable investigation and if found guilty may face punishment as per law.
    • The tribunal added that the “NFRA has far more powers and authority for professional misconduct of members of ICAI in comparison to powers and authority of ICAI itself.”
    • the NCLAT held, We consider the penalty as imposed by NFRA on all four Appellants were imposed as deterrent, perhaps keeping in mind all facts, including limited role as branch auditors. This cannot be considered excessive after all; it is fact that there has been fraud in DHFL of Rs. 31,000 Crores and Auditors can’t pretend to be ignorant of what was happening.
    • the NCLAT added, We feel that it is of utmost importance that Auditors realise their responsibilities which is necessary not only to the company but also to the public … Any deviation to this will only result is catastrophic effect on economy of the nation and cause immense prejudice and harm to the public, shareholders and various stakeholders such as banks, lenders, and creditors.
  5. On Friday the Vice President of India Jagdeep Dhankhar said Retired judges have a “tight-fist grip” over arbitration space in India.
    • Dhankar said, Friends, I am sharing my thoughts. Nowhere on the planet, in no other country, in no other system, there is such a tight fist grip on the arbitral system by retired judges. In our country, this is writ large.
    • Dhankhar further remarked, It takes a lot of courage to speak out so objectively about a fraternity to which you belong and he said retired judges dominate the field. He goes on to add and I salute him for this, he said while other qualified candidates are overlooked … He implied that this reflects an old boys club mentality within the arbitration space.
    • Dhankar said, Her election marks a momentous occasion as she becomes the first woman to hold this prestigious position but it is climaxed by another significant event in the centennial year of the ICC, International Court of Arbitration. With her extensive experience as an arbitrator and also as an emergency arbitrator, because this particular field will be occupying more space in times to come, she joins the ranks of trailblazing women who have broken barriers in the legal system.
    • he said, We therefore are in need of having a system that is robust, fast, scientific, effective, and delivers with the best of human brains.
    • the Vice President observed, Brilliant minds, some of whom are present here, know how to exploit the judicial system to get interventions and they are legitimised by law, so nothing wrong in that.
    • the Vice President said, There has been some growth in our country of arbitrary institutions but those institutions need to take central space and necessary changes in law are required to be effected to make them all meaningful.
  6. Recently the Kerala High Court urged the State authorities to ensure that people are protected from cyberbullying after concerns were raised about such online attacks on members of the LGBTQ+ community.
    • Justice Devan Ramachandran emphasized that there is a need for fairness and justice in the digital world.
    • the Court said, Every citizen has a right to live, which is equal and less to no other. These rights are constitutionally provided and protected and cannot be attenuated or suppressed by any person who may have propagandist ideas or deleterious philosophies to follow.
    • the Court’s order stated, Cyber space is no longer a myth, it is a reality. It is one where the reputations of persons are easily attacked and deracinated and the perpetrators believe that they can do so being without any accountability. This has to necessarily change because, in a civilized world, the Authorities are to acknowledge the issues involved and to take necessary repertory action. After all, otherwise, it is possible that certain sections would certainly be subjected to great prejudice.
  7. Recently the Delhi High Court restrained a company from using the mark ‘Dialmytrip’ in respect of tours, travel, hospitality, and allied services after it found that the mark was deceptively similar to that of online travel company ‘MakeMyTrip’.  (MakeMyTrip India Private Limited v Dialmytrip Tech Private Limited)
    • Justice Prathiba M Singh noted that both Dialymytrip and MakeMyTrip were involved in online business relating to travel and that Dailymytrip’s business and name was likely to be perceived as an extension of MakeMyTrip.
    • the Court ordered, Accordingly, the Defendant is restrained from using the using the mark/name ‘Dialmytrip’ in respect of tour, travel, hospitality and all other services. The Defendant has two domain names www.dialmytrip.com and www.dmtgroup.in. The first domain name shall not be used in respect of tour, travel, hospitality, hotels cabs or any other travel related services. The Defendant is, however, free to use the second domain name www.dmtgroup.in in respect of such services.
    • the Court noted that “in cases relating to trademark violations and passing off, if the evidence establishes a prima facie case, even at the ex-parte stage, injunction ought to be granted.
    • Justice Singh observed, In the opinion of this court, the marks Makemytrip and Dialmytrip are confusingly similar with each other. Especially considering the manner in which online business relating to travel is conducted, the Defendant’s business and name is likely to be perceived as an extension of the Plaintiff’s well known business or as an affiliate/connected business. Such confusion is also likely to lead to dilution of the Plaintiff’s mark and name as also brand equity.
  8. Recently the Madhya Pradesh High Court held that the rejection of a wife’s application for maintenance under Section 125 of the Code of Criminal Procedure (CrPC) does not bar her from seeking monetary relief under the Protection of Women from Domestic Violence Act (DV Act).
    • Justice Prem Narayan Singh said that a decision taken in a case under Section 125 CrPC and under Section 12 of the DV Act have no binding effect on each other.
    • the Court’s order stated, If, in proceeding under Section 125 of CrPC, the application of wife seeking maintenance is rejected by the Family Court, such wife would not be precluded from claiming maintenance or other monetary remedy under the provisions of the DV Act.
    • the High Court held, In upshot of the aforesaid ratio, the law laid down by Hon’ble the Apex Court, it is obviously established that a decision taken in the case under Section 125 of Cr.P.C. and under Section 12 of the D.V. Act, have no binding effect on each other.
    • The Court also noted that Section 43 of the Evidence Act clearly mandated that the judgments, orders or decrees, other than those mentioned in Sections 40, 41 and 42, are irrelevant, “unless the existence of such Judgment, order or decree, is a fact in issue or is relevant under some other provision of this Act.”
  9. Recently the Delhi High Court held that the Supreme Court’s judgment in NHAI v. M Hakeem & Anr, which restrained courts from modifying arbitral awards under Section 34 of the Arbitration & Conciliation Act, 1996, is not prospective in its application.  (Anil Kumar Gupta v. Municipal Corporation of Delhi & Anr)
    • A Division Bench of Justices Yashwant Varma and Ravinder Dudeja rejected the argument that the awards and decisions rendered prior to M Hakeem should be left untouched.
    • the judgment stated, The submission of learned counsel that awards and decisions rendered prior to M. Hakeem should be left untouched also cannot possibly be countenanced bearing in mind the indubitable principle of judgments principally being declaratory in character. M. Hakeem also does not indicate the Supreme Court having adopted the precept of prospective overruling, a power which is otherwise recognised to inhere in that court.
    • It becomes pertinent to note that the order of 08 August 2019 cannot possibly be construed as being representative of the learned Judge exercising the review power. As we read the said order, we come to the firm conclusion that the same constitutes a decision reached on a de novo rehearing as opposed to the discovery of a patent error or mistake apparent on the face of the record. We are of the firm opinion that once a matter comes to be finally disposed of it cannot be re-opened except in accordance with a procedure which stands sanctioned in law. We, thus, come to the firm conclusion that the judgment rendered on 12 December 2018 could not have been re-opened in the manner that the learned Single Judge chose to adopt. The order of 08 August 2019 is thus liable to be set aside on this ground alone.
    • the Court finally ordered, Accordingly, and for all the aforesaid reasons, the instant appeal stands allowed. All pending applications shall also stand disposed of. The orders dated 12 December 2018 and 08 August 2019 as passed by the learned Single Judge are hereby set aside. The Section 34 petition shall in consequence stand restored and placed on the board of the learned Single Judge for consideration afresh and in light of the observations appearing hereinabove.
  10. On Thursday the Central government told the Supreme Court that the recent amendments to the Forest (Conservation) Act, 1980 do not dilute the meaning of “forest” as discussed in a 1996 apex court judgment.  (Ashok Kumar Sharma and ors v. Union of India and anr)
    • A Bench of Justices BR Gavai and PS Narasimha was informed by counsel for the Central government that no precipitative action would be taken to enforce the new amendments until guidelines governing the same are notified.
    • the order stated, Shri Balbir Singh, learned Additional Solicitor General of India, on instructions, makes a statement that there is no intention to dilute the scope of forest as defined in the judgment of this Court in T.N. Godavarman (supra)….He submits that the guidelines are being finalized and would be notified in a short period…he makes a statement that no percepetative actions will be taken by the Union of India until further orders in respect of the forest, as understood in accordance with the dictionary sense.
    • It was stressed that human-wildlife conflict will increase as a result of opening forest land for non-forest use. The blanket exemption of protective rules for forest land within 100 km of international borders was also objected to.
  11. On Friday Desai & Diwanji Senior Partner Shishir Diwanji passed away he was 84.
  12. On Friday the Supreme Court observed that Advocates-On-Record (AoRs) would be reduced to mere “signing authorities” if they are allowed simply sign off on petitions drafted by other lawyers and are not held accountable for the contents of the petition.  (PK Subramanian vs Secretary Department of Law and Justice and Anr)
    • A bench of Justices Sanjay Kishan Kaul and Sudhanshu Dhulia observed that AoRs cannot simply shrug off their responsibility to properly scrutinise the petitions that they file.
    • The Supreme Court was hearing a suo motu plea where it has called for a comprehensive plan to reform the AoR system.
    • Justice Kaul replied, I am not too comfortable with that. They will (then) be used as signing authority. AoR cannot be absolved (of responsibility in such cases).
    • the bench added, You have to assist us. (It is) not about balancing.
    • the Court ordered, An AoR must perform duties that they have, (that) is our primary concern. Idea is not to put the burden on others or make it complex. Amicus will have to apply own mind by consulting any organisation including SCAORA. Let the (new) report of the Amicus be filed by December 13.
    • Justice Kau said, They should not be signing off. That is irresponsible. Bar should not indulge in unionism in this. Presence of so many people here is (laughs).
    • Justice Kaul replied, We will not issue you notice if it does happen (again) … (But) we will not allow netagiri (political one-upmanship) here. AoR has a higher responsibility. We want to discourage concept of AoR only lending their purpose for signatures.
    •  Justice Kaul said, As a leader you want to defend him (AoR). You only want relief for him. I have become lenient and do not want to pass adverse orders. On that aspect (review of bar license), we are keeping it pending.
  13. Recently the Karnataka High Court said that the State government cannot assign the charge of the Chairman of Karnataka State Pollution Control Board (KSPCB) to its functionaries beyond six months, when there is a vacancy. (Dr. Shanth. A. Thimmaiah V. The Government of Karnataka)
    • To ensure this happens, a division bench of Chief Justice Prasanna B Varale and Justice Krishna S Dixit also directed the State to reframe its latest guidelines on the selection and appointment of the KSPCB Chairman. 
    • the Court’s order, We emphasize that the ‘casual vacancy’, whatever be the reason for its accrual, in the office of the Chairman of KSPCB shall not be occupied by the (State government) functionaries mentioned in clauses 10 & 11 for a period beyond six months and therefore, the normative appointment by way of selection has to be made without brooking delay.
    • it added, Such a carte blanche is undesirable, to say the least, ‘reasoned decisions’ being the requirement of a Welfare State. Therefore, the term ‘without assigning any reason’ appearing in paragraph 11 cannot be sustained.
    • the Court noted, After due deliberation a short list containing seven names was prepared and the name of Petitioner figured at the top. Therefore, he came to be selected after assigning reasons.
    • The Court also said that that the phrase ‘for reasons to be recorded in writing’ must be added, so that reasons are assigned when it comes to delays in filling casual vacancies.
    • The Court was hearing a batch of eight petitions related to the process for appointment of the KSPCB Chairman.
  14. Recently the Madras High Court stayed all proceedings in the defamation case filed by an individual against the Bharatiya Janata Party (BJP)’s Tamil Nadu president, K Annamalai.
    • Justice G Jayachandran, while staying the proceedings until further orders, issued notice to the complainant, one V Piyush, after noting that Piyush had failed to establish his locus standi in the matter.
    • the High Court said, Since prima facie case is made out to quash the complaint which on the face of it, does not reveal the locus of the Petitioner to sustain the complaint, there shall be a stay of all further proceedings.
    • Piyush claimed that in such speech Annamalai had cited an unverified incident from 1956, where the then Forward Bloc leader U Muthuramalinga Thevar had warned Justice Party leaders that if non-believers chose to speak about the Hindu religion, their blood will be offered to the deities. Piyush claimed Thevar had never said so and that Annamalai had fabricated such comments.

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